text:
    Girard Trust Company v. Baird, Appellant.

      Mortgage—Payment—Keeping mortgage alive—Future advances—Creditors—Notice.

    The parties to a mortgage, as between themselves may, by agreement, continue its lien notwithstanding payment in full has been made by the debtor; and after such payment, if future advances are made, even in excess of the original loan for which the mortgage was given, subsequent creditors with notice of the agreement are bound by it.
    Notwithstanding the recording acts an unrecorded mortgage is good as against the mortgagor, or anyone claiming under him with notice.
    Argued March 23, 1905.
    Appeal, No. 354, Jan. T., 1904, by defendant, from decree of C. P. No. 2, Phila Co., Sept. T., 1901, No. 3902, dismissing exceptions to adjudication in case of Girard Trust Company v. Montagu M. W. Baird, Appellant, and Kate Baird, Fidelity Trust Company and William H. Jenks.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Bill in equity to determine priorities of lien.
    Exceptions to adjudication.
    The facts appear by the opinion of the Supreme Court.

      Errors assigned were in dismissing exceptions to adjudication.

      Frank P. Prichard, with him J. W. Bayard and John G. Johnson, for appellant.
    The assignment of December 18, 1897, was at most a mere mortg’age of Tobias’ interest in the real estate : Kellum v. Smith, 33 Pa. 158; Harper’s App., 64 Pa. 315; Fessler’s App., 75 Pa. 483; Kinports v. Boynton, 120 Pa. 306.
    The loan secured by this mortgage, having been paid off, the mortgage was extinguished, and cannot, as against creditors of the mortgagor, be revived: Thomas’s App., 30 Pa. 378; Mitchell v. Coombs, 96 Pa. 430; Loverin v. Humboldt Safe Deposit & Trust Co., 113 Pa. 6; Meigs v. Bunting, 141 Pa. 233; Zimmerman v. Raup, 162 Pa. 112; Neale v. Dempster, 179 Pa. 569; Cook v. Berry, 193 Pa. 377.
    If this mortgage had any validity as security for the loan of December 31, 1900, for $7,000 it was only valid to the extent of its face amount, namely, $2,500, and not the amount of that loan : Neff’s Est., 185 Pa. 98 ; Appeal of The Bank of Commerce, 44 Pa. 423.

      A. H. Wintersteen, with him George Tucker Bispham, for appellee.
    The assignment of December 18,1897, could, by agreement of the parties to it, be retained in the hands of Girard Trust Company as security for future loans, which would be enforceable against the debtor himself, and would also be available against all persons, including creditors, subsequently taking under Tobias with notice; and the appellant is such creditor: Peirce v. Black, 105 Pa. 342; Mitchell v. Coombs, 96 Pa. 430; Loverin v. Humbolt Safe Deposit & Trust Co., 113 Pa. 6; Mullison Est., 68 Pa. 212; Rhines v. Baird, 41 Pa. 256; Churcher v. Guernsey, 39 Pa. 84; Twitchell v. McMurtrie, 77 Pa. 383.
    The assignment of December 18, 1897, by agreement of the parties to it, was made to stand for the loan of $7,000, made December 31, 1900. The assignment was good for the full amount of the new loan, though in excess of the original loan. Being good against Tobias, it is good against the appellant, who has no greater rights: Thomas’s App., 30 Pa. 378, Mullison’s Est., 68 Pa. 212.
    May 8, 1905 :
   Opinion by

Mb. Justice Mestbezat,

Joseph F. Tobias was the equitable owner of an undivided 169/800 part of certain real estate in Philadelphia, known as the “ Old Oaks ” property, the legal title to which was in W. H. Jenks. Tobias borrowed money from the Fidelity Trust Company, the Girard Trust Company, the plaintiff, Montagu M. W. Baird, the defendant and appellant, and from Mr. Jenks. As collateral security for these loans, he, “ bargained, sold, assigned and transferred ” his interest in the “ Old Oaks ” property to each of his creditors, but none of these assignments was recorded. This bill was filed by the Girard Trust Company against Tobias, the Fidelity Trust Company, Baird and Jenks for the purpose of having determined the priorities of lien of the several assignments, and for a decree directing the sale of Tobias’s interest in the property and application of the proceeds to the payment of the plaintiff’s lien. The plaintiff loaned Tobias $2,500 on August 19, 1897, and the same amount on December 18, 1897, and on each occasion took as collateral securitj'- the assignment of his interest in the “ Old Oaks ” property. Subsequently these loans were paid, but instead of the assignment of December 18, 1897 being returned to Tobias it was then agreed by the parties that the plaintiff should retain it to secure future loans. On December 31,1900, the plaintiff company loaned Tobias $7,000 for which a promissory note- was given in which it was recited that he had “ deposited as collateral security for the payment of this liability . . . assignment of an undivided interest of 169/800 in “ Old Oaks ” property dated 12/19/97.” The loan of the Fidelity Trust Company was made July 13,1886, of Mr. Jenks, July 12, 1900, and of Mr. Baird, February 20,1901. Accompanying each of the several loans was an assignment of Tobias’s interest in the “ Old Oaks ” property as collateral security. The court below held that the assignments were unrecorded equitable mortgages and entered a decree that the several assignees had a lien against Tobias’s interest in the Old Oaks ” property from the dates of their respective assignments, and that they were entitled to participate in the proceeds of the property according to the priority of date of the assignments. From this decree Baird has appealed and raises the single question of the right of the plaintiff company to have priority over him in the distribution of the proceeds of the sale of the interest of Tobias in the “ Old Oaks ” property. The appellant contends (1) that the original loan of $2,500 by the Girard. Trust Company, secured by the assignment of December 18, 1897, having been paid off, the assignment which is conceded to be a mortgage was extinguished and could not, as against creditors of the mortgagor, be revived, and (2) that if the mortgage had any validity as a security for the loan of $7,000 of December 31, 1900, it was only valid to the extent of its face amount, $2,500, and not the amount of the larger loan.

We do not regard either of these positions as tenable. The appellant concedes that the several assignments made by Tobias were equitable mortgages on his undivided interest in the “ Old Oaks ” property, and acquiesces in the position of the court below that they have priority according to their respective dates. It is true that a mortgage paid by the mortgagor cannot be kept alive and retain its lien against subsequent mortgage and judgment creditors without notice. But as between the parties to the instrument, the mortgage may by agreement be kept alive and be enforced against the mortgagor for the amount of the loan secured by it. In Mitchell v. Coombs, 96 Pa. 430, a mortgage was given to a bank to secure a bond which was subsequently paid by the obligor, but the mortgage was retained by the bank as security for further discounts. In delivering the opinion of -this court, Mr. Justice Gordon says: “As to Coombs (mortgagor), Iris acquiescence in this arrangement (retention of mortg'ag'e to secure future advancements), would, no doubt, estop him from setting up the payment of the bond to defeat the mortgage, but as to his judgment creditors, the transaction was of no legal force. As to them the mortgage was satisfied, and no arrangement, not apparent on its face, would avail to continue its lien.” Loverin v. Humboldt Safe Deposit & Trust Co., 113 Pa. 6, was, as stated by the court, an attempt to keep alive a mortgage which had been paid by the mortgagors against a subsequent unpaid mortgage given by the same mortgagors upon the same premises. Of course, this could not be done, but in delivering the opinion Mr. Justice Paxson says : “ Where creditors are not concerned, there is perhaps no legal reason why it (keeping the mortgage alive) may not be done. Though actual payment discharges a judgment or other incumbrance at law, it does not discharge it in equity if there are interests which require it to be kept alive for tlieir protection. Thus it may be kept on foot for the protection of a paying surety, and other cases which it is not necessary to name. And it was said by Sharswood, J"., in Wilson v. Murphy, 1 Phila. 203, ‘there is no doubt that a mortgage may be kept alive, even after payment in full, if such were the intention of the parties, and even though there be no actual assignment to a trustee.’ ” And in Massachusetts while a mortgage cannot be kept alive by an oral agreement as security for a new indebtedness, yet it is there held that if such an agreement has been made and money has been advanced in consequence thereof by the mortgagee to the mortgagor, a court of equity will not aid the latter, or one claiming under him with knowledge of the facts, in obtaining a discharge of the mortgage: Joslyn v. Wyman, 87 Mass. 62; Stone v. Lane, 92 Mass. 74; Upton v. National Bank, 120 Mass. 153.

It is therefore clear, we think, that the parties to a judgment or mortgage, as between themselves, may, by agreement, continue its lien notwithstanding payment in full has been made by the debtor. There is no reason why this should not be so. It is simply permitting the parties to exercise the right of contract which they unquestionably have. And such an agreement binds not only the parties to the instrument, but also subsequent creditors with notice. It is settled that a third party with notice is bound by a contract between the mortgagor and the mortgagee to keep alive the security. Such party has no standing in law or equity to demand that his mortgage, taken with notice, shall have precedence over a prior mortgage held to secure payment of a bona fide loan. This principle is supported by authority as well as by reason. In Nice’s Appeal, 54 Pa. 200, it is distinctly held that an unrecorded mortgage will avail, not only against the mortgagor, but also against his alienee and mortgagee with notice. In Mellon’s Appeal, 32 Pa. 121, Mr. Justice Strong speaking for the court says that notwithstanding the recording acts it has uniformly been held that an unrecorded mortgage ’is good as against the mortgagor, or anyone claiming under him with notice. And in Britton’s Appeal, 45 Pa. 172, it v'as held that a mortgage given for the purchase money of real estate, executed before, but not recorded until after judgments had been entered against the mortgagor, is entitled to priority over them in the distribution of the proceeds of a sheriff’s sale of .the land where the judgment creditors had actual knowledge of the mortgage before the debts were contracted for which the judgments were obtained. The doctrine of these authorities has been announced and enforced in many other cases decided by this court.

We are of opinion that the parties to the assignment of December 18, 1897, could agree to beep it alive in order to secure further loans, and that the assignment was valid and had priority over a subsequent assignment by Tobias taken with notice of the agreement. It was found as a fact by the court below that'Baird, before making his loan to Tobias, had notice of the prior assignment to the Girard Trust Company, which was retained to secure the payment of the $7,000 loan made in December, 1900, and hence he is not in a position to dény its priority over his assignment made in February, 1901. And we also think that the assignment retained by the plaintiff company was effective to secure the full amount of the new • loan. This is on the same principle that the- parties could by agreement continue its validity to secure another loan. If the parties by contract could give the assignment life to secure another loan after the amount named in it had been paid, there is no reason why they could not at the same time stipulate the amount for which it was to remain a security. “We have no doubt,” says Paxson, J., in Peirce v. Black, 105 Pa. 342, “ that it is competent for the parties to a judgment, by their own agreement, to change the purposes for which it may be held.” And in Atwater v. Underhill, 22 N. J. Eq. 599, Depute, J., in delivering the opinion, says : “ A mortgage which has been satisfied may be given a new vitality by a redelivery by the mortgagor to the mortgagee, or a third person, upon a new consideration, or for a purpose different from that for which it was made.” The original loan to Tobias was paid, and, therefore, the assignment was no longer held to secure its payment. The assignor received another sum of money from the assignee for which the parties agreed that the instrument should remain a security. Tobias, the assignor, is not seeking to invalidate his contract and is not contesting the right of the plaintiff to retain the assignment to secure the payment of the larger loan, and why should Baird with notice of the sum loaned occupy a higher ground ? Why permit him to attack the validity of the contract and enable him to prevent the payment of the plaintiff’s loan and thereby secure his own loan made with full knowledge of the contract and the amount of the loan the assignment secured? To permit him to do so under the circumstances would be a fraud on the plaintiff company which, on the faith of the contract, furnished the $7,000. A court of equity will not lend its assistance to a party to secure a fund on which another has a claim which is prior in time and of superior equity.

The decree is affirmed.


source: Caselaw Access Project

author: Mb. Chief Justice Mitchell,

license: Public Domain

text:
    Trescott v. Co-operative Building Bank of New York, Appellant.

      Appeals—Rules of court—Construction of rules.

    Where the only questions raised by assignments of error relate to the interpretation and administration by the court below of its own rules, the judgment will not be disturbed by the appellate court, except for clear error to the substantial injury of the party complaining.

      Appeals—Paper-books—Printing record.

    In the presentation of the docket entries or other parts of the record in the paper-books the duty is imperative to print them exactly as they are in the record. Any inaccuracies, errors or omissions in the record may be noted and the attention of the court called to them in the statement or history of the case, but the transcript must present the record exactly as it is, so that the court may rely upon it as if it were the original. It is serious error to rearrange and abbreviate the docket entries.
    The condition of the record in this case criticised and condemned.
    Argued April 10, 1905.
    Appeal, No. 238, Jan. T., 1904, by defendant, from order of C. P. Luzerne Co., Oct. T., 1902, No. 17, discharging rule to open judgment in case of Rush Trescott v. The Co-operative Building Bank.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Élkin, JJ.
    Affirmed.
    Rule to open judgment.
    The court discharged the rule.

      Errors assigned were as follows:
    1. The court below erred in discharging the rule to open the judgment.
    2. The court below erred in discharging the rule to open the judgment placed on the argument list in violation of the rule of court providing for ten days’ notice to opposing counsel of- ordering a case on said list after it was made up.
    8. The court below erred in discharging the rule to reinstate the rule to open the judgment.
    4. The court below erred in discharging the rule to strike off the judgment.
    5. The court below erred in holding the defendant guilty of laches in applying for the rule to strike off the judgment, where it was averred and not denied by the plaintiff that the defendant had made diligent efforts to have depositions taken upon the rule to open the judgment, which had been promptly taken, but that in consequence of the plaintiff’s deception and action in violation of the rules of court, the defendant and its counsel did not become aware that the rule was on an argument list and discharged until nine months later, and where the defendant promptly moved to reinstate the rule to open, and whereupon the court’s refusal to reinstate the rule,. the defendant promptly took the rule to strike off the judgment.
    6. The court below erred in holding that the defendant in moving to open the judgment had waived all irregularities where among the reasons assigned in support of the rule to open, irregularities in the entry of the judgment were set up which are apparent upon the face of the record.

      Gustav us RemaJc, Jr., with him John MoGahren, and M. H. MoAniff, for appellant.

      James L. Lenahan, T. R. Martin and Rush Tresoott, for appellee, were not heard.
    May 8, 1905:
   Opinion by

Mb. Chief Justice Mitchell,

The only questions raised by the assignments of error relate to the interpretation and administration by the court below of its own rules. In such cases we have often said that the judgment will not be disturbed except for clear error, to the substantial injury of the party complaining. No such error has been shown.here. The main cause of complaint is that a judgment for want of an affidavit of defense was prematurely entered, arid that a rule to open it was irregularly put on the argument list, contrary to rule of court and was discharged. Both matters turned on the facts as to the dates, upon which the evidence was far from clear, and the court below having investigated and determined them, we are in no position to disturb its conclusion.

On the call of the case in this court for argument, a motion was made by the appellee to suppress the paper-book of the appellant and quash the appeal, on the ground, inter alia, that the proceedings, and especially the docket entries, were not correctly copied or recited. From such hasty examination as we were able to make at that time it appeared that the discrepancies between the docket entries as they stood on the record and in the paper-book of appellant were the result of an effort by the latter at a more orderly and correct arrangement of the entries. Such effort was in itself a serious error of judgment on the part of counsel. In the presentation of the docket entries or other parts of the record in the paper-books the duty is imperative to print them exactly as they are in the record. Any inaccuracies, errors or omissions in the record may be noted and the attention of the court called to them in the statement or history of the case, but the transcript must pre•sent the record exactly as it is, so that the court may rely upon it as if it were the original. In the present case the docket entries are not only rearranged, but in some instances they do not follow the language at all but give what is apparently intended as an abbreviated substance of the entry. Had our examination at the time disclosed these facts we should have certainly suppressed the paper-books and quashed the appeal.

Some excuse for counsel is to be found in the highly discreditable condition „of the record itself.

The docket entries as officially certified to us, are scattered haphazard over the page with no regard to their dates or their proper sequence. Thus under dates of March 8 and March 14, 1904, are entries of a petition and a rule to show cause why the judgment should not be stricken off, and on March 22 a demurrer to the rule. The next entries in their order are:

“ Now 2. July 1904 Deft, excepts to the opinion of the Court discharging the rule to show cause why judgment- should not be stricken off, and thereupon Exception noted and bill sealed for defendant. By the court.

“Now 6 July 1904 Defendant excepts to the decree of the Court in denying the prayer of the petitioner as ordered in the decree of March 3, 1904 and thereupon a bill is sealed and the exception noted.

“ George S. Ferris (Seal) Judge.”

“Now July 2, 1904, by opinion of Hon. F. W. Wheaton, A. L. J. filed rule to show cause why the judgment should not be stricken off is discharged. By the Court, Wheaton, J.

“Now 3 March 1904 Petition of M. H. McAniff, Atty. for Deft, filed praying Court for a rule to show cause why this judgment shall not be opened and the Argument of the rule granted on the ninth of May reinstated. (See files.)”

It is thus made to appear that exceptions to the court’s decision were filed before the decision itself, while a preliminary motion filed in March is not docketed until after the decision in July.

Nor are the docket entries the only part of the record open to the same kind of objection. The affidavit of plaintiff’s attorney of service of notice of the filing of his statement is sworn to before the deputy prothonotary on May 7, 1903, and yet is indorsed by the same officer as having been filed on May 6. Such irregularities cannot be tolerated. They are destructive of all confidence in the accuracy of the record, and call for prompt and sharp overhauling by the court below of the administration of its prothonotary’s office. The confusion and uncertainty in regard to the date of the notice and other matters may also well suggest to the court whether a rehearing of the case on the regularity of the whole proceeding in regard to the judgment may not be advisable. Such rehearing is for that court, not for us.

Appeal dismissed.


author: Per Curiam,

text:
    Smith, Appellant v. Myers.

      Will—Vested and contingent estates—Ejectment—■Domicile.

    In an action of ejectment it appeared that the testator had devised to the plaintiff as trustee, a farm “to be held by said trustee until my grandson, son of my deceased son, shall arrive at the age of twenty-one years. The said trustee to assume charge of said farm and divide proceeds equally between the children of my deceased son, and at the time my said grandson shall arrive at the age of twenty-one years, or shall depart this life, in that case the trust aforesaid shall be discharged and said farm become the property of the remaining children of my said son jointly and equally.” Testator left three granddaughters, children of his deceased son, and his grandson. The three granddaughters conveyed their shares to one under whom defendants claimed, and the plaintiff as trustee by lease reciting such conveyance, leased to the same person for the period of the trust the remaining undivided fourth of his infant cestui que trust. Held (1), that under the will each of the granddaughters took a present vested estate in common in one fourth of the farm, with a remainder in one third of the fourth, contingent on the grandson dying before the age of twenty-one; (2) that the provision that on the grandson’s death under twenty-one, his fourth should go to the “remaining” children is equivalent to “other,” not “then surviving” children, and it does not make the one fourth to each of the granddaughters’ contingent; (3) that the trustee by his lease not only expressly conveyed his right of possession of the infant’s one fourth, but recognized and acquiesced in the possession of the lessee under his conveyance from the other heirs; and (4) that at the time of suit the trustee had no right of possession to any part of the farm, and therefore a nonsuit was properly entered.
    Argued April 11, 1905.
    Appeal, No. 249, Jan. T., 1904, by plaintiff, from order of C. P. Luzerne Co., Oct. T., 1902, No. 818, refusing to take off nonsuit in case of Thomas H. Smith, trustee, v. J. J. Myers and Michael Smith.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and ' Elkin, JJ.
    Affirmed.
    Ejectment for land in Nescopeck township. Before Ferris, J.
    The facts appear by the opinion of the Supreme Court.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was refusal to take off nonsuit.

      Philip L. Drum, and William S. McLean, for appellant.

      George K. Powell, with him 0. C. Evans, for appellee. ■
    May 8, 1905 :
   Per Curiam,

Testator devised to plaintiff as trustee a farm “to be held by said trustee until my grandson, William Raber, son of my deceased son, William Raber, shall arrive at the age of twenty-one years. The said trustee to assume charge of said farm and divide proceeds equally between the children of my deceased son, William, and at the time my said grandson shall arrive at the age of twenty-one years, or shall depart this life, in that case the trust aforesaid shall be discharged and said farm become the property of the remaining children of my said son jointly and equally.”

The testator left three granddaughters, children of his son William, all of age, and his grandson, William, who was and still is a minor. Under the will each of the granddaughters took a present vested estate in common in one fourth of the farm, with a remainder in one third of a fourth, contingent on William dying before the age of twenty-one. The provision that on his death under twenty-one his fourth should go to the “ remaining ” children is clearly equivalent to “ other,” not “ then surviving ” children and does not make the one fourth to each of the granddaughters contingent.

The three granddaughters conveyed their shares to one Seeley under whom defendants claim, and the plaintiff as trustee, by lease reciting such conveyance leased to Seeley for the period of the trust the remaining undivided fourth of his infant cestui que trust. By that lease he not only expressly conveyed his right of possession of the infant’s one fourth, but recognized and acquiesced in the possession of the lessee under his conveyance from the other heirs. He thereby completely parted with his right of possession as to every part of the farm. The nonsuit was properly entered.

Judgment affirmed.


author: Pee Curiam,

text:
    McGroarty v. Lehigh Valley Coal Company, Appellant.

      Trespass—Damages to land—Elements of damages—Evidence.

    In an action of trespass to recover damages for injuries to land caused by flooding, the'trial court commits no error in permitting witnesses for plaintiff to testify as to the value of the land, where it appears that such witnesses have knowledge of value of lands in the vicinity, and particular knowledge of the land in question, of the damage which it sustained, and of its availability for building purposes.
    The fact that such land had never been plotted, or put in the market for building lots, although it should make the jury shy of that element of the damages claimed, does not of itself make its availability for that purpose inadmissible. Any present or proximate use to which land is likely to be put, though not by itself a criterion of damages, is an element of its value, and may be shown as such.
    Argued April 11, 1905.
    Appeal, No. 269, Jan. T. 1904, by defendant, from judgment of C. P. Luzerne Co., May T., 1902, No. 42, on verdict for plaintiff in case of Mary A. McGroarty v. Lehigh Valley Coal Company.
    Before Mitchell, C. J., Fell, Mesteezat, Pottee and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for injuries to land caused by flooding from a coal washery. Before Fereis, J.
    The plaintiff called a number of witnesses as to value, who qualified by stating that they were familiar with the value of lands in the neighborhood, knew the particular land in question, of the character of the injury done to it, and of its availability for building purposes.
    Verdict and judgment for plaintiff for $1,781.81. Defendant appealed.

      .Errors assigned were various rulings on evidence and instructions.

      J. B. Woodward, of Woodward, Barling Woodward, and H. W. Palmer, for appellant.

      John T. Lenahan, with him John P. Shea, for appellee.
    May 8, 1905:
   Pee Curiam,

The witnesses whose testimony was received as to the value of the land, its availability for sale for building purposes and the extent of the damage inflicted by the ovez-flow from appellant’s premises, all had such knowledge of the subject as could be fairly expected as to such matters in that neighborhood. The value of their testimony was for the jury.

The fact that the land had never been plotted or put in the market for building lote, though it should have made the jury shy of that element of the damages claimed, did not of itself make its availability for that purpose inadmissible. Any present or proximate use to which land is likely to be put, though not by itself a criterion of damages, is an element in its value and may be shown as such. We have examined the evidence in the present case with care to see if the jury were allowed to estimate the damages on a separate basis of the injury to plaintiff’s land as building lots. But we do not find that they were permitted by the charge to go beyond the consideration of such use only as one of the elements of value. To that extent they were entitled to go : Reiber v. Butler, etc., R. R. Co., 201 Pa. 49; Gearhart v. Clear Spring Water Co., 202 Pa. 292. The verdict appears to us grossly excessive, but as that is a matter of which the court below was in better position to judge than we can be, we should not be justified in interfering with the judgment on this gz-ound.

Judgment affirzned.


author: Peb Cubiam,

text:
    Allen, Appellant, v. Kingston Coal Company.

      Negligence—Mines—Master and servant—Evidence—Presumption.

    In an action against a coal mining company to recover damages for the death of plaintiff’s husband, where the substance of the testimony is that the deceased was found just at the mine door with injuries on his body that seemed to indicate that he had been crushed, the plaintiff cannot prevail on a theory which while consistent with defendant’s negligence does not exclude the contributozy negligence of the deceased.
    The doctrine res ipsa loquitur, dangerous and uncertain at best, is never to be applied except whei-e it not only supports the conclusion contended for, but also reasonably excludes eveiy other.
    Where a coal miner is found dead at the mouth of the mine, and there is no evidence as to the cause of his death, the presumption that the deceased was innocent of negligence, is equally balanced by the same presumption as to his employer.

      Mines and mining—Ventilation—Negligence—Acts of June 2, 1891, P. L. 176 and April 20, 1899, P. L. 65.
    The provisions of the Act of June 2,1891, P. L. 176, as amended by the Act of April 20,1899, P. L. 65 relating to an attendant at mine doors, have reference solely to ventilation, and not to the safety of persons using the gangways.
    Argued April 12, 1905.
    Appeal No. 57, Jan. T., 1905, by plaintiff, from order of C. P. Luzerne Co., May T., 1902, No. 283, refusing to take off compulsory nonsuit in case of Prudence Allen v. The Kingston Coal Company.
    Before Mitchell, C. J., Bbown, Mestbezat, Potteb and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Before Lynch, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was refusal to take off nonsuit.

      W. Alfred Valentine, with him Edward A. Lynch, for ap, pellant.

      Anthony L. Williams and Henry W Palmer, for appellee.
    May 8, 1905:
   Peb Cubiam,

There was no evidence that plaintiff’s husband came to his death through the negligence of the defendant. The substance of the testimony is that he was found dead just at the mine door with injuries on his body that seemed to indicate that he had been crushed. The apparent elements of danger were the sides of the gangwaj*, the loaded coal cars, and the mine door which was kept closed by a strong pressure of air forced in for ventilation. Which of these elements, if any, or what combination of them, caused his death was wholly conjectural, and none of them implied any negligence on the part of the defendant. Appellant’s theory, as stated by her counsel, was that “ the accident that caused her husband’s death, and which was the only theory advanced at the trial, was that because -of the negligence of the defendant company, he had been caught between the side of the passageway at the main door, and the side of a moving car, and squeezed to death.” But conceding this as the most probable manner of his death it does not tend to show negligence of the defendant. The deceased may have slipped and fallen off his car, or jumped off, or have got off safely and yet been caught by the door before he had a secure hold of it to keep it open. His own failure in this respect is quite as probable as any other hypothesis. The doctrine res ipsa loquitur, dangerous and uncertain at best, is never to be applied except where it not only supports the conclusion contended for, but also reasonably excludes every other: Oil Co. v. Penna. Torpedo Co., 190 Pa. 350; Alexander v. Penna. Water Co., 201 Pa. 252.

Appellant argues that the plaintiff is entitled to the presumption that deceased was innocent of negligence. True, but so is the defendant, and the presumptions are equally balanced. Negligence contributory or other, is not to be presumed but must be shown by evidence. In the instances where it is said that this presumption in plaintiff’s favor must take the case to the jury there was at least some evidence of defendant’s negligence, as e. g., the excessive speed of the car in Haughey v. Pittsburg Railways Co., (No. 1) 210 Pa. 363, cited by appellant. And even in Stringert v. Township of Ross, 179 Pa. 614, where the minority of the judges thought the existence of a deep rut in the highway was sufficient evidence of defendant’s negligence to take the case to the jury, the court held that the cause and manner of the accident were merely conjectural and sustained a nonsuit.

Appellant’s case can get no assistance from the mining Act of June 2, 1891, P. L. 176. The requirement of section 10 of that act, amended by the Act of April 20, 1899, P. L. 65, that all main doors shall have an attendant “ whose constant duty it shall be to open them for transportation and travel, and prevent them from standing open longer than is necessary for persons or cars to pass through,” has reference solely to ventilation, not to the safety of persons using the gangways. The object was to keep the doors closed. In this case the evidence is that the door was kept closed by the air pressure, and required considerable effort to open or to keep it open.

Judgment affirmed.


author: Me. Justice Mestbezat,

text:
    Kern’s Estate.

      Register of wills—Letters of administration—Revocation—Wills.

    Where, after letters of administration have been issued, a will is found and offered for probate, the register of wills has the power to revoke the letters of administration, and admit the will to probate: Beatty’s Estate, 193 Pa. 304, distinguished.
    Argued April 12, 1905.
    Appeal, No. 88, Jan. T., 1905, by-Antonia Kern, from decree of O. C. Luzerne Co., dismissing appeal from Register of Wills in Estate of Leonard Kern, deceased.
    Before Mitchell, C. J., Blown, Mestbezat, Potteb and Elkin, JJ.
    Reversed.
    Appeal from register of wills. Before Fbeas, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was the decree of the court.

      Ernest K. Little, for appellant.
    The precise question involved in this appeal has been decided by this court in but one reported case, viz:: Agnew’s Appeal, 37 Pa. 467. That case held that, where letters of administration have been granted by the register and a will subsequently discovered, the proper practice is to make application to the register for the probate of the will. The register should thereupon revoke the letters of administration inadvertently granted and admit the will to probate. See Bieber’s App., 11 Pa. 157; Boyd’s App., 38 Pa. 246: McCaffrey’s Est., 38 Pa. 331; Schaufuss’s Est., 5 Kulp, 275; Neal’s Est., 17 W. N. C. 191; Riegel’s App., 17 W. N. C. 279.
    No paper-book or appearance for appellee.
    May 8, 1905:
   Opinion by

Me. Justice Mestbezat,

Leonard Kern died June 23, 1904, leaving to survive him a widow, Antonia Kern, four children and one grandchild. Letters of administration on his estate were granted by the register to his widow July 6,1904, who gave the bond required by law. In December of that year a will of the decedent was discovered among his papers, which Mrs. Kern, the executrix named therein, probated before the register. Subsequently, on December 16, 1904, she presented her petition to the register setting forth that her husband had died testate, that letters of administration on his estate had been inadvertently issued to her, that she had given bond conditioned to surrender the letters if thereafter it appeared a will had been made, that the will had been proved before the register and was on file in his office, and praying for leave to surrender the letters of administration that they might be revoked and the will might be admitted to probate and letters testamentary be issued thereon. All the parties interested in the estate of the decedent and the bondsmen of the administratrix joined in the prayer of the petition. The register refused the prayer of the petition, entering the following decree : “ Now, December 19, 1904, upon consideration of the facts stated in the within petition, the register is of opinion that the matter is beyond his jurisdiction and that the orphans’ court only had authority to revoke the letters granted, and therefore the prayer of the petitioner is refused.” From this decision Mrs. Kern appealed to the orphans’ court which sustained the action of the register and dismissed her appeal. She has now appealed to this court.

The fifth section of the Act of March 15, 1832, P. L. 135 (2 Purd. Dig. 1847), confers on the register exclusive “jurisdiction, within the county for which he shall have been appointed, of the probate of wills and testaments.” The issuing of letters testamentary and of administration in this state is also, regulated by the same statute. The twenty-second section of the act (1 Purd. Dig. 578) provides that “whenever letters of administration are by law necessary, the register having jurisdiction shall grant them in such form as the ease shall require.” The twenty-first section of the act (1 Purd. Dig. 577 ) provides that upon granting letters of administration the register shall take a bond with sufficient sureties from the ]3arty to whom the letters are granted conditioned for the performance of the several duties of the administrator therein enumerated, and that “ if it shall hereafter appear that any last will and testament was made by the said deceased, and the same shall be proved according to law, and if the said A. B. (the administrator ) being thereunto required, do surrender the said letters of administration into the register’s office aforesaid, then this obligation to be void, otherwise to remain in full force.”

We have no doubt as to the right of the register, and we are satisfied that it was his duty, under the facts presented here, to permit the probate of the will of the deceased presented to him by Mrs. Kern, and to revoke the letters of administration granted to her. These letters were granted on the assumption that the deceased had died intestate. It is only upon that ground that the register is authorized by the statute to grant such letters. The deceased, however, had the right to dispose of his property by will, and if he did so, there is a statutory obligation resting upon the register when the instrument is presented to him to permit the probate of it, and to issue letters testamentary to the party named as executor. It is not only the duty of the register to probate any will that may be presented to him but, at the instance of any person interested, he is required by section seven of the Act of March 15, 1832, P. L. 135 (1 Purd. Dig. 571 ), to “issue a citation to any person having the possession or control of a testamentary,writing, alleged to be the last will and testament of a decedent requiring him to produce and deposit the same in his office for probate and if thereafter such person shall conceal or withhold the writing, he is liable to an indictment or to an action for damages by the person aggrieved.

The existence of a valid will and its probate determine conclusively that the letters of administration were improvidently granted and should be revoked. Why, then, should not the register revoke them ? It is simply a formal, though a mandatory, act. The parties interested are all heard when the will is probated. When it is presented, the register should not act ex parte but issue a citation to all parties interested in the estate, and they may then be heard as to the validity of the will and the consequent right of the register to issue letters testamentary. If any person is aggrieved by the action of the register he can have his rights determined in the usual way by an appeal. When the validity of the will has been judicially determined by the register without appeal, or by the court on appeal, letters testamentary must be issued to the executor, or if none be named in the will or the person who is named is disqualified, letters of administration with the will annexed must be granted by the register. This in effect revokes the prior letters of administration, and the register on application should enter the formal decree of revocation.

If the register is powerless to act in the matter after he has granted letters of administration, as held by the court below, we have the administratrix here occupying the anomalous position of being required by her bond to surrender the letters to the register and he having no authority to accept them. Such a construction of the statute regulating the subject is not supported by reason nor precedent. The condition of the bond is that the letters shall be surrendered into the register’s office “ if it shall hereafter appear that any last will and testament was made by the deceased, and the same shall be proved according to law.” As we have seen, the statutory jurisdiction of the register to probate wills in this state is exclusive and, therefore, a will can only be “ proved according to law ” before him. Hence, if the contention of the learned judge below be correct and the register has no authority to accept the surrender of the letters, the administratrix must, nolens volens, incur the penalty of the bond. This will hardly appeal to anyone as a reasonable construction of the statutory provision governing the subject; and it did not convince this court in Agnew’s Appeal, 87 Pa. 467. The authority'to issue letters of administration and the provision requiring the bond with its condition are parts of the same statute and when construed together, as they must be, clearly authorize the register to revoke letters of administration on the probate of an after-discovered will. The legislative intent manifestly was, as disclosed by the act of assembly, that when a will is found after a supposed intestacy, it shall be probated as provided by the statute, and that thereafter the letters of administration shall be surrendered to the register who issued them and shall be by him revoked. The learned judge of the orphans’ court held that with the granting of letters of administration to Mrs. Kern, the power of the register over the letters ceased and, therefore, he had no authority to revoke them on the subsequent discovery of the will. In his opinion he says he relies on Beatty’s Estate, 193 Pa. 304, and that his “ opinion is written in supposed obedience to the law as laid down in that case.” But that case, as the learned judge says, only decides “ that a register cannot revoke the probate of a will.” That is certainly true, and the reason is manifest. “*A register,” says Chief Justice Black, in Holliday v. Ward, 19 Pa. 485, “ is a judge, and the admission of a will to probate is a judicial decision. His judgment, if it bé in favor of the will, is evidence of its validity in ’all respects whatever, conclusive as to personal property, and presumptive as to real. Such judgment can only be set aside on appeal, and is unimpeachable in any other proceeding.” But here we have an entirely different question presented, and one which is controlled by -legislation. As we have attempted to show, the proper interpretation of the statutory authority to grant letters of administration confers by clear implication authority on the register to revoke them on the subsequent discovery of a will of the decedent. The register’s authority to grant letters of administration is confined to cases of intestacy, and hence, when letters were granted to Mrs. Kern on the estate of her husband, the register was without authority to do so, and that would have been judicially determined by the probate of the will. The revocation of the letters, after the probate of the will, was a formal act required of the register after the testacy of the decedent had been judicially ascertained. In principle, cases of this character are not unlike those other cases where letters have been improvidently issued, and we have held that the register has the power to revoke such letters: Boyd’s Appeal, 38 Pa. 246; McCaffrey’s Estate, 38 Pa. 331.

The decree of the orphans’ court dismissing the appellant’s appeal from the register of wills is reversed; and it is now ordered, adjudged and decreed that the appeal from the register be sustained and that his decision refusing to admit to probate the writing purporting to be the last wilPand testament of decedent, dated December 28, 1885, and the codicil thereto attached, be set aside, and that unless cause be shown to the contrary, the register permit said will and codicil to be probated and the said Antonia Kern to surrender the letters of administration on the estate of Leonard Kern, deceased, granted to her by said régister.


text:
    Mitchell, Appellant, v. Mitchell.

      Deed.—Fraud—N otice—Creditor.

    The principle volenti non fit injuria is a good defense to what would otherwise be actual fraud, and a fortiori it is good against merely constructive fraud.
    Where a creditor knows and assents to a conveyance by his debtor to the latter’s wife, he cannot after having secured a judgment against the debtor sell the property conveyed as that of the debtor.

      Evidence—Witness—Competency of witness—Attorney at law.

    An attorney at law who acts for both parties in negotiations or communications in presence of both is a competent witness for either as to such matters.
    Argued April 13, 1905.
    Appeal, No. 32, Jan. T:, 1905, by plaintiff, from judgment of C. P. Luzerne Co., Oct. T., 1902, No. 190, on verdict for defendant in case of Joseph Mitchell v. Frederick E. Mitchell, Polly Mitchell et al.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Ejectment for land in the city of Wilkesbarre. Before Halsey, J.
    At the trial it appeared that Frederick E. Mitchell was indebted to his brother, Joseph Mitchell, in the sum of 1100. On September 26, 1900, while the debt was unpaid, Frederick E. Mitchell in consideration of $1.00 and of natural love and affection conveyed the land in dispute to his wife, Polly Mitchell. This conveyance was made with the knowledge and assent of Joseph Mitchell. Subsequently Joseph Mitchell recovered a judgment against Frederick E. Mitchell, and condemned and sold as the property of Frederick E. Mitchell, the land conveyed to the latter’s wife. The sheriff made a deed to Joseph Mitchell, who subsequently brought this suit. The court admitted under objection and exception the testimony of John Dando, an attorney at law, who represented Joseph Mitchell and Frederick E. Mitchell, in matters relating to the execution of the deed to Mrs. Mitchell.
    Verdict and judgment for Polly Mitchell. Plaintiff appealed.

      Errors assigned among others were (5) in admitting the testimony of J ohn Dando, and (15) in refusing binding instructions for plaintiff.

      John E. Jenkins, with him Lawrence B. Jones, for appellant.

      Daniel A. Fell, for appellee, was not heard.
    May 8, 1905:
   Per Curiam,

The principle volenti non fit injuria is a good defense to what would otherwise be actual fraud: Zuver v. Clark, 104 Pa. 222, and a fortiori it is good against merely constructive fraud. The jury have found that plaintiff knew and assented to the conveyance by defendant to the latter’s wife. That ended the plaintiff’s case.

An attorney at law who acts for both parties in negotiations or communications in presence of both is a competent witness for either as to such matters: Goodwin Gas Stove & Meter Co.’s Appeal, 117 Pa. 514.

Judgment affirmed.


text:
    Madden, Appellant, v. Lehigh Valley Coal Company.

      Mines and mining—Surface support—Waiver of right to support contract.

    • Where one person owns the surface and another pei'son owns the coal or materials lying underneath, the under or mineral estate owes a servitude of sufficient support to the upper or superincumbent estate. This principle has no application where the same person is the owner of both estates, nor does it apply where by the contract between the parties they have covenanted for a different rule. Like any other right, the owner of the surface may part with the right to support, by his deed or covenant.
    Where a conveyance of surface reserves to the grantor the right “to mine and take away the coal without making any compensation to the grantee his heirs or assigns, for any effect upon, or injury to the said lot or piece of ground, or the surface thereof, or to the buildings below the surface thereon, or to the building erected thereon in consequence of mining,” the grantee has no right to surface support, and cannot recover for failure of support, even if 'that has been caused by negligent mining.
    Argued April 13, 1905.
    Appeal, No. 56, Jan. T., 1905, by plaintiff, from judgment of C. P. Columbia Co., Sept. T., 1905, No. 4, for defendant on case stated in suit of Michael Madden v. Lehigh Valley Coal Company.
    Before Mitchell, C. J., Brown, Mestrbzat, Potter and Elkin, JJ.
    Affirmed.
    Case stated in action of trespass for failure to afford surface support. Before Little, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was in entering judgment for defendant on the case stated.

      Edward J. Flynn and L. S. Walter, for appellant.

      S. P. Wolverton and Heeler Heeler, for appellee.
    May 8, 1905 :
   Per Curiam,

Plaintiff derived his title from the predecessor of defendant by a conveyance containing the following reservation: “ excepting and reserving always, nevertheless, out and from the premises hereby granted, unto the said The Locust Mountain Coal and Iron Company, their successors and assigns forever, all coal, ore and minerals of every kind contained in and under the said lot of ground above described, or any part thereof, with the right for the said The Locust Mountain Coal and Iron Company, their successors and assigns, to mine and take away the same .... without making any compensation to the said Michael Madden, his heirs or assigns, for any effect upon, or injury to the said lot or piece of ground, or the surface thereof or to the buildings above described, below the sur? face thereof, or to the building thereon erected, in consequence of mining ; and reserving also to the said The Locust Mountain Coal and Iron Company, their successors and assigns, the right to pass through the said lot or piece of ground above described below the surface thereof in all directions, for all the purposes necessary or convenient in mining coal, ore, and minerals from the said lot, and also from any other land adjacent to the said lot or piece of ground above described, without liability for any effect upon the surface of said lot or piece of ground, or to the buildings erected thereon.”

This case turns on the construction of that clause: It is conceded that in ordinary cases of horizontal severance of land, the subjacent estate even though without limit as to the right of removal bears with it an obligation of support of the surface: Jones v. Wagner, 66 Pa. 429. And such burden will not be escaped by implication from language not necessarily importing such result: Williams v. Hay, 120 Pa. 485. In the latter case the law was clearly stated as follows: “ It is settled in this state that where one person owns the surface and another person owns the coal or minerals lying underneath, the under or mineral estate owes a servitude of sufficient support to the upper or superincumbent estate. This principle has no application where the same person is the owner of both estates, nor does it apply where by the contract between the parties they have covenanted for a different rule. Like any other right, the owner of the surface may part with the right to support, by his deed or covenant.”

■ The distinction made in the last part of this quotation was established in Scranton v. Phillips, 94 Pa. 15, and has not since been departed from. That case conclusively rules this.

The plaintiff declared for negligence, in removing the pillars of coal whereby his land was left without adequate support. But this raised an immaterial issue. The reservation of the coal and the right to remove it was not that it should be done carefully or in the usual course of proper mining, but the right was absolute to mine and take away “without making any compensation .... fpr any effect upon, or injury to the said lot or the surface thereof, or to the buildings,” etc., in consequence of mining. Avoidance of liability for injury to the surface however caused, by negligence or otherwise, was the very object of the reseiwation. As to the coal and the method of its removal the land was reserved to the grantors., and their right remained as unqualified as if the conveyance to the plaintiff had never been made at all. As already quoted from Williams v. Hay, the principle of surface support has no application where the same person is owner of both estates, nor where by contract the parties have covenanted for a different rule. This is the doctrine of Scranton v. Phillips, 94 Pa. 15, and the reservation in the present case is at least as comprehensive as in that.

Appellant’s counsel dwell on the hardship of the case. But presumably he got his land cheaper by reason of this disadvantage and whether so or not that was his bargain.

Judgment affirmed.


author: Per, Curiam,

text:
    Delaware, Lackawanna & Western Railroad Company v. Charles D. Foster, Appellant.

      Equity—Interpleader—Mines and mining—Royalties.

    The owner of land cannot be turned out of possession or bis collection of the rent be interfered with on a mere threat of a third party to sue his tenant.
    Where on a bill in equity for an interpleader it appears that the plaintiff is the lessee under a coal lease, and that the first defendant has been recognized for years as the rightful owner of the royalties, while the second defendant is a recent claimant, the court cannot, after having refused the interpleader prayed for, enjoin the first defendant from collecting the royalties by process of law, without first entering into a written agreement to refund the same if it shall be found that he is not entitled to them.
    Argued April 13, 1905.
    Appeal, No. 64, Jan. T., 1905, by plaintiff, from decree of C. P. Luzerne Co., Oct. T., 1903, No. 3, on bill in equity in case of Delaware, Lackawanna & Western Railroad Company v. Charles D. Foster.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Bill in equity for an interpleader and an injunction. Before Ferris, J.
    ■ From the record it appeared that the plaintiff was the lessee of coal under a lease in which one Sarah Horton had an interest. Charles D. Foster, one of the defendants, acquired a portion of the interest of Sarah Horton, and from June 13, 1894, to January 1,1903, received his proportionate share of the royalties. On March 23, 1903, Grizzie G. Norris made a demand on plaintiff claiming all of the royalties due on the share of Sarah Horton. The plaintiff then filed the present bill for an inter-pleader. Both defendants demurred to the bill.
    Ferris, J., filed an opinion which was in part as follows:
    Each of the defendants filed a separate general demurrer to the bill. That of Mrs. Norris was withdrawn pursuant to an agreement that her rights in the premises should be determined by an action of ejectment, and the prayer of the bill was modified accordingly. This would seem to eliminate from this proceeding the prayer for an interpleader, leaving the bill to stand, practically, as an application for equitable relief pending a determination of the rights of the parties by an action at law. This relief has been afforded by the special injunction already granted, which does not restrain Mr. Foster from bringing an action for royalties claimed by him if he so desires, but only from collecting and receiving them without first entering into a written agreement to refund them if it shall appear that he is not entitled to them. The plaintiff has been decreed to pay him, and all he need do to receive them pending the action by Mrs. Norris is to receipt for them, with an agreement to refund them in ease it shall turn out that he had no right to receive them.
    The demurrer of Charles D. Foster is sustained so far as it relates to the bill as an application to the court for a decree that defendants interplead. The bill is allowed to stand, however, as an application for general relief, and the special injunction heretofore granted is continued until further order.

      John Mo Gahren, with him Ernest K. Little, for appellant.
    Where there is no eviction or interference with the tenant’s possession, he is not at liberty to dispute the title of his landlord : Schuylkill & Dauphin Improvement & R. R. Co. v. Schmœle, 57 Pa. 271; Dyer v. Wightman, 66 Pa. 425; Workman v. Mifflin, 30 Pa. 362; Leininger’s App., 106 Pa. 398; Grassy Island Coal Co. v. Hillside Coal & Iron Co., 1 Lacka. Jurist, 297.

      A. H. McGlintoch, with him Arthur Hillman, for appellee.
    Though a tenant cannot controvert his landlord’s title he may show that it has ended, and that either by a legal or equitable transfer to another: Sparks v. Walton, 4 Phila. 72; Heritage v. Wilfong, 58 Pa. 137; Smith v. Crosland, 106 Pa. 413.
    May 8, 1905:
   Per, Curiam,

When the court below refused the interpleader it took away every ground on which the bill could be supported. The result of the court’s order is that the appellant is deprived of his rents under the lease, or his receipt of them is clogged with a burdensome restriction, upon no better ground than the allegation of the lessee that a third person, stranger to the lease, claims title and threatens suit. The owner of land cannot be turned out of possession, or what is the same thing his right to the rents be interfered with by any such short cut through the law. The burden is upon the newcomer who seeks to change the existing status.

Whether the complainant can under subsequent facts show a real and present danger of having to pay twice, need not now be considered, but the present bill lias nothing to sustain it.

Decree reversed and bill directed to be dismissed with costs.


author: Mb. Justice Fell, Mr. Justice Potter,

text:
    Provident Life & Trust Company v. Durham, Appellant.

      Taxation — Corporations — Assessment ■—■ Trust company — Insurance assets—Acts of June 8,1891, P. L. 229, June 8, 1893, P. L. 353, June 1,18S9, P. L.‘ 420—February 18, 1869, P. L. 194.
    On a bill in equity for an injunction against tax assessors it appeared that the plaintiff was a trust company which also conducted a life insurance business as a department of its business. It paid the five mills tax upon the assessed value of its capital stock under the Act of June 8, 1891, P. L. 229 as amended by the Act of June 8, 1893, P. L. 353 and also the four mills state tax on the bonds, mortgages and other securities held by it as trustee, executor, administrator and guardian. The defendants sought to assess the company with a four mills tax upon a fund of $31,646,779.17 invested in bonds, mortgages and other securities, and held by it as a reserve fund accumulated in its insurance department to offset maturing risks and like valid demands. The defendants contended that under the Act of February 18, 1869, P. L. 194, these insurance assets were not owned by the corporation, but represented net profits of the insurance department. Held, that the insurance assets wei’e not a part of the net profits of the insurance department within the meaning of the act of February 18, 1869, but were owned by the corporation in its own right, and not'taxable under the Act of June 8, 1891, P. L. 229.
    Dean and Potter, JJ., dissent.
    Argued Jan. 9, 1905.
    Appeal, No. 131 Jan. T., 1904, by defendants, from decree of C. P. No. 2, Phila. Co., Dec. T., 1900, No. 751, on bill in equity in case of Provident Life & Trust Company v. J. Wesley Durham and H. Gilbert Cassidy, assessors, and Simon Gratz, Rinaldo A. Lukens and Isaac H. Shields, members of the board of revision of taxes.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat and Potter, JJ.
    Affirmed.
    Bill in equity for an injunction.
    The bill averred
    That plaintiffs are a Pennsylvania corporation chartered to conduct the business of a life insurance company and also of a trust company.
    That defendants are real estate assessors and members of the board of revision of taxes.
    That the acts of 1889, 1891 and 1893 provide for a four mills tax on certain classes of personal property, but exempt therefrom corporations paying a capital stock tax, which tax plaintiffs have always paid.
    That defendants claim the right to tax insurance assets own by plaintiffs, aggregating $31,646,779.17, and threaten to impose also a penalty of fifty per cent thereon, unless report made thereof, whereupon a report was made under protest.
    That defendants now claim to recover the four mill tax on those assets, though plaintiffs are exempted from that tax because of the payment of the capital stock, tax, and though the recovery thereof from plaintiffs would be discriminative and unjust in favor of other corporations, and therefore violate the uniform taxation clause of the constitution of this state, and the due process of law clause of the constitution of the United States, and because also the first section of the acts of 1889 and 1891, imposing the personal property tax, violate also the same constitutional provisions.
    That plaintiffs have regularly paid the eight mills tax on their gross insurance premiums in addition to the capital stock tax.
    That defendants intend to return the $31,646,719.17 of assets for taxation to the board of revenue commissioners, who will thereupon assess and collect a tax thereupon, and plaintiffs will be exposed to litigation and their property to levy and great and irreparable loss; that this course will be pursued yearly, and plaintiffs will have to pay, and rely upon their ability to recover back from the defendants personally.

      The bill prayed ah injunction against defendants and a'decree that these assets are not liable to the four mills tax.
    The defendants filed an answer denying the right to the relief claimed by the plaintiff.
    The case was heard by Wiltbank, J., who found numerous facts and conclusions of law and filed the following opinion:
    The proposition advanced by the plaintiff corporation may we think be formulated thus : that under the revenue act of June 1, 1889, P. L. 420, and June 8, 1891, P. L. 229, inasmuch as it has paid the tax upon its capital stock, the property of which return was made under protest to the defendants, valued at $31,646,779.17, is not taxable, because within the class described by the later act as mortgages, bonds and other securities owned by it in its own right; that, independently of this proposition, that property comprises various kinds of assets, each upon varying considerations not assessable by the defendants ; that if the second proposition is not sustained, and also the act of 1891 in the clause invoked does not apply, an examination of the act of 1891 shows it to be unconstitutional.
    The system of assessment of corporation assets for purposes of revenue contemplates three classes to wit: first, the assets involved in the calculation of the appraised value of the capital stock; second, the assets held by the corporation in its own right, perhaps identical with the former class or perhaps including that and something more, the excess representing property answerable for liabilities of the corporation ; third, the assets held in trust. The defendants contend that the property of which return was made by the plaintiffs is taxable as assets held in trust, in addition to assets of $6,455,242 already returned by it specifically as held in that relation.
    These contentions are based upon a proviso of the twenty-first section of the act of J une 1, 1889, as amended by the act of June 8, 1891, and re-enacted by the Act of June 8, 1893, P. L. 353, which proviso is as follows: Provided also, that corporations, limited partnerships and joint-stock associations, liable to tax on capital stock under this section, shall not be required to make report or pay any further tax on the mortgages, bonds and other securities owned by them in their own right, but corporations, limited partnerships and joint-stock associations, holding such securities as trustees, executors, administrators, guardians or in any other manner, shall return and pay the tax imposed by this act upon all securities so held by them as in the case of individuals.
    This legislation exemplifies the method or system of taxation of property inaugurated in Pennsylvania by the Act of June 7, 1879, P. L. 112, which was followed by the Acts of June 10, 1881, P. L. 99, and June 30, 1885, P. L. 193. (Mr. Justice Mitchell in Fidelity Ins., etc., Co. v. Loughlin, 139 Pa. 612, 617.)’ The principle of the act of June 8, 1891, is clear, to wit: that a corporation is to be taxed for purposes of revenue just as an individual or private citizen .is to be taxed, according to its assets; and so as to be in this respect on a footing of equalitj' with all corporations of the commonwealth, and also to be free from double taxation. That each citizen must contribute to the public revenue, and that a corporation doing business must contribute as a private citizen must, are made apparent by the statutes ; and the general doctrine is an enlightened one and, as we think, in this state practically exhibited in legislation which is just and at length equitably comprehensive. Criticisms by the Supreme Court, such as are found in Fox’s Appeal, 112 Pa. 337, and Fidelity Ins., etc., Co. v. Loughlin, 139 Pa. 612, have doubtless assisted the legislature. A corporation is treated and taxed as an owner of property represented by its capital stock. If in the course of its business under its charter it has the legal title to propérty of others, that property is also taxed under certain circumstances, but the tax falls upon the parties having the title in equity. Hence when we enter upon an examination of the case at bar, we ask, what assets were contemplated in making up the value of the capital stock of the plaintiff, and what assets did it hold for people for whom it acted in a fiduciary capacity ? ■ A distinction at once suggests itself: the undisputed and unquestionable findings of fact show that the capital of this plaintiff is $1,000,000; that the market value of its capital stock is $5,100,000; that its assets free from the estimation of its capital stock, that jjs to say, practically set aside for its liabilities in the commercial appraisement of the capital stock, are $31,-646,779.17. There is thus a variance which we shall discuss. But with regard to property held in trust there cannot arise this variance. The appraisement of trust assets involves nothing more than the ascertainment of values, usually (for taxation in Pennsylvania) of par values, and if not this, then of values in the market.
    The distinction turns on the point of liabilities. In the assessment of stocks, bonds, other investments, real or personal, of a trust estate, the indebtedness of the trust estate owning them is not a consideration. They may be assets for the payment of debts, it is true, but no amount of indebtedness of the man who controls them can prejudice or increase their value. This is determined by standards having no relation whatever to- the solvency of him who may have the right to dispose of them. Thus far the situation of a trading corporation is similar. No amount of its indebtedness can prejudice or increase the value of the stocks, bonds, other investments, real or personal, which it controls and may dispose of. But the situation of a trading corporation involves a stage beyond this; assuming the assets described as of a given value, unaffected by the financial condition of their owner, what is their availability in trade as capital of the trading corporation ? The problem, then, is the assessment, not of the capital, but of these assets as the capital stock ; and this requires an ascertainment of the liabilities, to meet which assets must be set apart, and thus found unavailable pro tanto for other use. The value of a business capital is ascertained in the market upon allowance of many considerations, among which is the volume of debts of the business.
    It is no longer an open question that this discrimination in the estimate of the values of the property of private citizens and of artificial bodies, whereby the liabilities are disregarded in one case and taken as factors in the other, is consistent with the rule of the constitution, that all taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax. Corporations and individuals must stand as citizens, equally liable to taxation, but they are not of the same class. It was said in Pullman Palace Car Co. v. Commonwealth, 107 Pa. 156, “ While a tax on the capital stock of a company is a tax on its property and assets, yet the capital stock of a company and its property and assets are not identical.”
    In Pox’s Appeal, 112 Pa. 387, it was said, “ It has been repeatedly decided in this state and is settled law that a tax upon the capital stock of a corporation is a tax upon its property and assets. It would be an affectation of learning to refer to the long line of cases asserting this doctrine; it is sufficient to refer to Commonwealth v. Standard Oil Company, 101 Pa. 119.”
    In Commonwealth v. Standard Oil Co., 101 Pa. 119,14-5, the Supreme Court cites twenty-seven authorities on the point. In the L. S. and M. S. R. R. Co. case, 11 Pa. Dist. Rep. 318, Simonton, J., said, “ The property and capital stock are not identical, and it is the latter which is to be valued and taxed in this case.” The underlying principle of appraisement of stock according to market value in all these rulings, that the word assets means things of value to the corporation after an estimate of, or allowance for, its liabilities, is formulated by the same high authority in Commonwealth v. Lake Shore, etc., R. R. Co., 3 Dauphin County Reports^ 172. “ Under the act of June 8, 1891, the question of the actual value in cash of the capital stock of a corporation is a question of fact which must be determined by considering the value of defendant’s tangible property and assets of every kind, including its bonds, mortgages and moneys at interest, and its franchises and privileges ; and the amount of incumbrances on its property and franchises is also a relevant fact to be considered, but is not to be specifically deducted from the valuation so ascertained and determined.”
    The Act of June 1, 1889, P. L. 420, was, as long as without amendment, open to criticism in some particulars, and the argument urged upon - us is reasonable that judicial comment in Fidelity Ins., etc., Co. v, Loughlin, 139 Pa. 612, was before the legislatureTn the framing of the amendatory Act of June 8, 1891, P. L. 229. The original provisions subjected a corporation to the risk of double taxation, because of an apparent oversight of the fact that assets must be allowed for as specifically untaxable if necessary to meet liabilities. The fourth proviso of the act of June 1, 1889, saved property of corporations “ belonging to them and constituting any portion of their assets included within the appraised value of their capital stock.” The Supreme Court, by Mr. Justice Mitchell, said in the ease last cited : “ 'J'he proviso applies to all mortgages of corporations of either class, included in the valuation of stock prescribed by either section 20 or section 21, and so read it carries out its plain intent of preventing double taxation. Under what circumstances there may be any mortgages not so included in the appraised value, we need not now inquire. If there should at any time be any such, they will be taxed under section 1.” That a corporation may own mortgages and other securities not affecting the market value of its capital stock, not necessarily taken into the calculation of that value, is difficult to understand, as this authority, we might say, this warning against double taxation, indicates. “ The capital stock is nothing,” said the Supreme Court in Fox’s Appeal, 112 Pa. 337, “ a myth; a mere name excepting in so far as it is represented by investments made with the money paid into the treasury of the corporation on account of such capital stock. Hence it is that the courts have long since declared that a tax upon the capital stock of a corporation is a tax upon the assets and property of such corporation.”
    The act of June 8, 1891, was intended, among other things, to avoid the uncertainty involved in the possible case of property “ not so included in the appraised value,” and which, therefore, “ if there should at any time be any such,” would “ be taxed under section 1.” It struck out the phrase, “ constituting any portion of their assets included within the appraised value of their capital stock,” and substituted, “shall not be required to make report or pay any further tax on the mortgages, bonds and other securities owned by them in their own right.” The word further, is, in this connection, conclusive of the legislative understanding.
    It is admitted that the plaintiff has paid the tax due upon its capital stock, and the proofs have shown that an original value of $1,000,000 has increased in the market, upon a commercial estimate of the availability of its property and assets, which must necessarity allow for its liabilities, to $5,100,000. This appraisement has been approved and accepted by the authorities, who have taken the tax thereon. The sum of $31,646,779.17, which is the subject of the present dispute, has a relation to this appraisement, as also has the sum of $43,009,633.21, representing the contingent obligations of the plaintiff in its insurance business. According to the proofs we must hold that these items of assets and liabilities were factors in. tbe calculation of the market value of the capital stock, and that the $81,646,779.17 are held by the plaintiff in its ownoright, notas the net profits of the insurance department, but as a fund to offset maturing risks and like valid demands.
    This fund cannot be regarded as held in trust for others within the meaning of the act of assembly. Nothing justifies a judgment that the legislature meant other than trusts known as such in virtue of their creation, express trusts, under defined conditions, in favor of specified persons, and not quasi trusts arising by implication of law, as, for instance, upon the foundation of an insolvent’s obligations to his creditors. The act contemplates two classes of assets, those to which the corporation holds title in its own right, and those to which it holds title for others: its debts are payable out of the former class; a reserved fund, or a fund regarded in the conduct of the business as applicable to demands likely to arise upon the maturing of policies of life insurance, remains of this class. The assets held by. a solvent corporation in its own right cannot in any just or legal sense be said to be held by it in trust either for creditors or stockholders. Solvent, it holds its property as any individual holds his, free from the touch of a creditor who has acquired no lien; free also from the touch ,of a stockholder who, though equitably interested in, has no legal right to, the property: Hollins v. Brierfield Coal & Iron Company, 150 U. S. 371 (14 Sup. Ct. Repr. 127).
    These general principles are assented to by the defendants, who, however, direct attention to so much of the charter of the plaintiff corporation as we find in the amendatory act of February 18, 1869, which reads as follows : “ That the first section of the act, to which this is a supplement, shall be amended by adding thereto the following provision, viz.: And all the net profits to be derived from the business of life insurance, after deducting the expenses of the company, shall be divided pro rata among the holders of the policies of such life insurance, equitably and ratably, as the directors of said company shall and may, from time to time, ascertain, determine and report the same for division.”
    In view of our findings of fact from the proofs it cannot be said that the sum of $31,646,779.17 represents net profits delived from the business of life insurance, and it is not claimed that any division thereof has been ascertained, determined and reported by the directors. Accepting it as a sum of money accumulated in the insurance department of the plaintiff, we go as far as we can to define its character. On the case presented to us, no such interest in holders of the policies of life insurance in this sum is shown as to sustain a bill for an account, should such be filed, and the defendants as assessors of property could not determine a title to be in policy holders which the latter could not establish. The claim that the funds are held in trust for the assured must therefore be overruled.
    The argument has been advanced for the defendants that if any part of tbe assets of a corporation is thus held by it in its own right, and if the corporation is exempted from obligation to make report of, and pay a tax upon, this part, then tbe provision to that effect of the act of June 8, 1891, creates an exemption which is unconstitutional as within the inhibition, “ and all other exemptions shall be wholly void.”
    But if we bear in mind the clause, “ owned by them in their own right,” does not exclude the idea of the assets in question having entered into the calculation of the value of the capital stock, and also that the act does not contemplate corporation property as independent of corporation capital, but on the contrary by its amendment of the ambiguoiis clause of the act of June 1, 1889, shows that in the estimation of the legislature there is no property which does not enter into that calculation, excepting property held in trust for others, the objection of unconstitutionality falls. The phrase, “ owned by them in their own right,” does not work an exemption ; the provision is against the risk of double taxation, and reaches property not held for others.
    The court entered a decree in accordance with the prayer of the bill.

      Error assigned among others was the decree of the court.

      Alex. Simpson, Jr., and Hampton L. Carson, for appellant.
    If the assets aggregating $31,646,779.17 are taxed at their actual value, such taxation will not be violative of the “ due-process-of-law ” provision of the Constitution of the United States, or the “ uniformity-of-taxation ” clause of the constitution of this state, because other corporations pay tax on the market value of their capital stock and not upon their gross assets: Fox’s App., 112 Pa. 337; Com. v. N. Y., etc., R. R. Co., 188 Pa. 169; Com. v. Lake Shore, etc., R. R. Co., 11 Pa. Dist. Rep. 318; Cummings v. Merchants’ Nat’l. Bank, 101 U. S. 153; New York v. Barker, 179 U. S. 279 (21 Sup. Ct. Repr. 121).
    The assets aggregating $31,646,779.17, belonging to the insurance department of the plaintiff are assets which are “ owned by them in their own right ” within the meaning of section 5 of the Áct of June 8, 1891, P. L. 229.
    Plaintiffs have in their charge two kinds of assets, aside from the assets of trust estates. One set belongs to the shareholders, subject to the corporate debts, and those assets have paid tax to the state in the capital stock tax. In the other set the shareholders have no direct interest, and no part of them can ever go to the shareholders. At plaintiff’s instance, they were, by judicial decree, wholly excluded from consideration in determining the value of the capital stock, though under the decision of this court all the assets of the corporation are to be appraised in determining that value. Those assets never have paid a state tax, either directly or in the valuation of the capital stock. They are therefore taxable.
    This, then, brings us to the real and indeed the only question raised, viz.: Are such assets liable to pay the four mills tax the same as like assets are in the hands of individuals? Chadwick v. Maginnes, 94 Pa. 117; Com. v. Standard Oil Co., 101 Pa. 119; Com. v. Lehigh Valley R. R. Co., 129 Pa. 429; Com. v. Penna. Coal Co., 3 Dauphin Co. Rep. 142; Lackawanna Iron & Coal Co.’s App., 129 Pa. 346; Fidelity Ins., etc., Co. v. Loughlin, 139 Pa. 612; Sproul v. Murray, 156 Pa. 293; Com. v. Fall Brook Coal Co., 156 Pa. 488; Com. v. Provident Life & Trust Co., 3 Dauphin Co. Rep. 130; Com. v. Ontario, etc., Ry. Co., 188 Pa. 205; Bell’s Gap. R. R. Co. v. Penna., 134 U. S. 232 (10 Sup. Ct. Repr. 533); Fox’s App., 112 Pa. 337; Com. v. N. Y., etc., R. R. Co., 188 Pa. 169; Fidelity Ins. etc., Co. v. Loughlin, 139 Pa. 612; Appeal of Lackawanna Iron & Coal Co., 129 Pa. 346; Com. v. Wm. Mann Co., 150 Pa. 64; Com. v. Westinghouse Electric & Mfg. Co., 151 Pa. 265; Young Men’s Christian Assn. v. Donohugh, 7 W. N. C. 208; Moore v. Taylor, 147 Pa. 481; Phila. v. Barber, 160 Pa. 123; Mercantile Library Co. v. Phil., 161 Pa. 155.

      M. E. Olmsted and Samuel jDiekson, for appellee.
    The statute instead of authorizing, expressly forbids the attempted taxation: Fox’s App., 112 Pa. 337; Loughlin’s App., 19 W. N. C. 517; Trust Co. v. Loughlin , 17 Phila. 123; Com. v. Lehigh Valley R. R. Co., 129 Pa. 429; Wilkes-Barre Deposit & Savings Bank v. Wilkes-Barre, 148 Pa. 601.
    The securities sought to be taxed are owned by the company in its own right: Graham v. R. R. Co., 102 U. S. 148.
    Authority for taxation must be shown in a clear and unambiguous statutory language: Powers v. Barney, 5 Blatch. 202, 203; U. S. v. Wigglesworth, 2 Story, 369-373; Cooley on Taxation, 199, 200; Sutherland on Stat. Construction, sec. 361, 362; Boyd v. Hood, 57 Pa. 98; Partington v. Atty.-Genl., L. R. 4 H. L. Cas. 100.
    The $31,646,779.17 of securities do enter into the valuation of the company’s capital stock upon which tax is paid : Pullman’s Palace Car Co. v. Com., 107 Pa. 156.
    The attempted taxation violates constitutional requirements as to uniformity : Com. v. Lake Shore, etc., R. R. Co., 11 Pa. Dist. Repr. 318; Pullman Palace Car Co. v. Com., 107 Pa. 156; Com., v. N. Y., etc., R. R. Co., 188 Pa. 169; Cope’s Est., 191 Pa. 1; Portuondo’s Est., 191 Pa. 28.
    May 15, 1905:
   Opinion by

Mb. Justice Fell,

In 1900 the Provident Life and Trust Company, the appellee, reported to the auditor general that its capital stock, the par value of which was $1,000,000, was of the actual value of $5,100,000, and it paid thereon the five mills tax imposed by the act of 1891. It reported that as trustee, executor, administrator and guardian it held bonds, mortgages and other securities of the value of $6,455,282. On this it paid the state tax of four mills. It also paid a tax of eight mills on its gross premiums, and other taxes amounting in all to over $150,000. Upon notice from the board of revision of taxes of the city of Philadelphia, it made a return under protest of so-called insurance assets aggregating $31,646,779.17. The question raised by this appeal is whether these assets are subject to a state tax of four mills. They are subject to the tax if within the meaning of the act of assembly they are held in trust for others. They are exempt from taxation, except as they are included in the value of the capital stock of the company, if they are owned by it in its own right.

The first section of the Act of June 1, 1889, P. L. 420, in terms includes corporations with natural persons in imposing a tax on money at interest, but by the fourth proviso to the twenty-first section, imposing a tax on capital stock, corporations are relieved from any tax on bonds, mortgages and other securities “ belonging to them and constituting any portion of their assets included within the appraised value of their capital stock.” This section of the act of 1889 was amended by the Act of June 8, 1891, P. L. 229, and the words of the proviso above quoted were omitted from the later act and the exemption was extended to mortgages, bonds and other securities held by corporations, “owned by them in their own right.” In construing the act of 1889, it was held that the intent of the proviso was to prevent double taxation and that the tax imposed by the twenty-first section was not cumulative but in substitution for that imposed by the first section: Fidelity Ins., etc., Co. v. Loughlin, 139 Pa. 612. The same construction would apply to the act of 1891.

This is briefly the legislation on the subject. The facts to which it is applied are these : The Provident Life and Trust' Company is a corporation conducting the business of a life insurance and trust company. In the management of its business all receipts are mingled in a common fund. In order to keep track of its different branches, the receipts from insurance are credited to the insurance branch, and the expenses, death losses and payments on endowment policies are charged to this branch. The surplus with accumulations of interest is held as a reserve fund to meet the payment of policies as they mature and to make certain the fulfillment of the contracts of insurance.

The contention that the insurance assets are not owned by the corporation is based on the Act of February 18,1869, P. L. 194, amending the act under which the company was incorporated which provides ; “ That all the net profits to be derived from the business of life insurance after deducting the expenses of the company, shall be divided pro rata among the holders of the policies of such life insurance, equitably and ratably, as the directors of said company shall and may, from time to time, ascertain, determine and report the same for division.” These assets do not represent the net profits of the insurance branch. They are a part of the gross assets of the company, subject to its insurance liabilities, which amount to over $43,000,000. The clear finding on this subject is: “ Thére is no provision of law that plaintiff’s assets or any part of them derived from its business of insurance shall be set apart for the benefit of policy holders, and they.are not so set apart, but, as matter of bookkeeping, plaintiff keeps a separate and distinct account of the assets pertaining to that side of its business. Its contract with its policy holders contains no provision giving them a claim upon any particular assets, but is the ordinary standard form of insurance policy. When insurance losses occur, they are paid out of the general fund of the company, and subsequently as a matter of bookkeeping charged to the insurance side of its business. The $31,646,779.17 of securities reported by plaintiff under protest was owned by it in its own right, and not as trustee, executor, administrator, guardian or any other fiduciary capacity.”

These securities constitute a fund owned by the company in its own right' to meet contingent liabilities. No particular assets represent the net profits, which in 1900 amounted to $6,279,520, to which the policy holders will become entitled when the directors- of the company ascertain and report .them for division. Until they are reported for division, the policy holders are entitled to nothing, and then not to securities in kind but to money. This fund is under the absolute control of the trust company and was created to meet future indebtedness. The management of the company does not differ in this regard from the management of other financial institutions that create an adequate reserve against certain liabilities. It is only by regarding the company as a holding company and its branches as distinct entities for whose benefit investments are made and securities held that any conception of a distinct trust relation arises. If so regarded it is a trustee as well for its depositors of all securities purchased with funds received by its banking department, and these are liable to taxation. The act of 1891 contemplates no snch shadowy trust relation as this.

A further discussion of the subject would be a useless repetition of the reasons so clearly stated in the able opinion of the learned judge of the common pleas.

The decree is affirmed at the cost of the appellant.

Mr. Justice Potter,

dissenting :

It is admitted in the opinion filed on behalf of the majority of the court in this case, that the invested funds aggregating §81,646,779, are properly to be taxed, if they are held in trust for others. It can only fairly escape the same taxation as other moneys at interest pay, if it is owned by the trust company in its own right. It appears from the record that in 1898, when the commonwealth undertook to do the very thing which the trust company now says ought to be done, that is, tax the insurance assets as the property of the company held by it in its own right, the company strenuously resisted. It then set forth, referring to its charter, that it was “ authorized by said charter to conduct, and it does conduct, in pursuance of said charter authority, two separate and distinct branches of business, viz.: the business ordinarily incident to a trust company and the business of a life insurance company. . . .

“ Its capital stock, surplus fund, and undivided profits above mentioned are not used with reference to, or in connection with, or as part of, its life insurance business in any way whatsoever, but are entirely separate and distinct therefrom, and its stockholders, as such stockholders, have no interest in the life insurance business, which is conducted as other life insurance companies are conducted, not for the benefit of stockholders but for the benefit of the insured; it being expressly provided by the Act of February 18, 1869, P. L. 194, supplementary to the original act incorporating the company, that £ the net profits to be derived from the business of life insurance, after deducting the expenses of the company, shall be divided pro rata among the holders of the policies of such life insurance, equitably and ratably, as the directors of said company shall and may, from time to time, ascertain, determine, and report the same for division.’ Such divisions are from time to time made to the holders of policies, but no division of profits arising from the insurance business are, or ever have been divided among the stockholders as such. The assets of the insurance part of the company’s business are kept in an entirely separate and distinct fund, and are not covered by the capital stock of the company, and have no relation thereto, no more than if the insurance business were conducted by an entirely separate and distinct corporation.”

The contention of the company in this respect was well founded and was sustained by the Dauphin county court. But the present attitude of the company is entirely inconsistent with the view for which it so stoutly and successfully contended at that time. The result is that under the conclusion reached by the trial judge in this case, and affirmed by the majority of this court, this very large invested fund, composed of the insurance assets of the company, escapes taxation altogether. Under any other circumstances than those in which it now seeks to avoid taxation, the company would no doubt reject with vigor, any suggestion that it did not hold the insurance assets in trust for the policy holders. It would be most insistent that in common with all other sound and reliable insurance companies, its attitude to its policy holders is that of a pure trusteeship. The policy holders contribute the capital, which is invested on their account to equalize the mortality risks; and after paying the cost of administration, the whole amount, surplus as well as legal reserve, is morally and equitably the property of the policjr holders. Not a dollar of it belongs to, or can in any way lawfully be distributed among the stockholders of the trust company. They have no more right to it than to any fund which the company may hold as guardian, administrator or receiver.

There can be no question but that the fund now under consideration is made up of the proceeds of premiums paid by the policy holders to cover the mortality risks for the whole period' of their policies. It is the amount reserved to meet claims accruing from the insurance in force. It belongs to the holders of policies who are entitled at their maturity to the face value and in addition to a pro rata share in the accumulated profits.

How then is it possible to hold that this is not a fund held by the company in trust for them ?

The company holds the legal title to the fund, but to suggest that it holds the fund in its own right, for the benefit of its stockholders, is startling in the extreme. The only benefit which can accrue to the stockholders of the trust company, is in the handling of the fund as a deposit in course of investment, and from the incidental advantages which accrue from the control of large sums of money. In addition to this, under its charter privilege, all expenses of conducting the trust company are chargeable to the insurance department of the business. To my mind, it is perfectly clear that the fund in question is made up of trust assets, and as such, they are taxable as in the case of individuals.

I would therefore reverse the decree of the court below, and dismiss the bill.

Dean, J., concurs in this dissent.