author: Me. Justice Mestrezat,

text:
    Singer’s Estate.

      Husband and wife — Agreement of separation — Reconciliation.
    1. Deeds and postnuptial agreements for the actual and immediate separation of husband and wife, based upon a good consideration and reasonable in terms, are valid and effectual both at law and in equity.
    2. Where a husband and wife enter into a written agreement to live separate and apart from each other during their natural lives, and in the agreement adjust their respective property rights, but subsequently enter into a second agreement in which they recite the execution of the former agreement, and that the parties have become reconciled and desire to live together, but stipulate that the terms of the former agreement should in no other respect be modified, and thereafter there is no subsequent separation, the husband cannot after the death of his wife demand that he be relieved from the performance of his part of the contract, and claim a share in her estate under the intestate laws.
    Argued May 16, 1911.
    Appeal, No. 125, Jan. T., 1911, by John A. Singer, from decree of O. C. York Co., dismissing exceptions to auditor’s report in Estate of Adelaide Y. Singer, Deceased.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Exceptions to report of Allen C. Wiest, Esq., auditor.
    Bittenger, P. J., filed the following opinion:
    The following exceptions were filed by John A. Singer, surviving husband of the decedent:
    1. The auditor erred in holding “Your auditor, upon the authority of Burkholder’s Appeal and Fennel’s Estate, holds that John A. Singer is precluded by the above mentioned agreement of January 6, 1902, and of March 24, 1902, from taking any part in his deceased wife’s estate, notwithstanding he and his wife became reconciled after January 6, 1902, and cohabited for a considerable period of time after March 24, of the same year; and therefore he is not entitled to any part of the balance on the account of Richard E. Cochran, executor of the will of Adelaide V. Singer, deceased, as shown by said account or as modified by your auditor; and his claim for five thousand dollars and for one-half of the remainder of said balance, after deducting the costs of audit, is therefore disallowed, and said balance is distributed in accordance with the provisions of the aforesaid will of Adelaide V. Singer.”
    2. The auditor erred in not awarding to John A. Singer absolutely surviving husband of Adelaide Y. Singer, the one-half of the estate of said Adelaide V. Singer remaining after paying debts and legal necessary costs of administration.
    3. The auditor erred in not awarding John A. Singer the sum of $5,000 in addition to the one-half of the said estate.
    4. The auditor erred in finding “The Act of April 1, 1909, P. L. 87, does not apply to a case where the decedent dies testate and the husband elects to take against the will.”
    5. The auditor erred in not finding that from 1904 up to February, 1907, John A. Singer and Adelaide V. Singer did not live together as husband and wife.
    6. The auditor erred in not finding that from February, 1907, to May 25, 1907, the said John A. Singer and Adelaide V. Singer did live and cohabit together as husband and wife continuously with the exception of one day, at Asheville, N. C., the Hotel Eduard, Philadelphia, and at Clifton Springs, and at the residence of John A. Singer in the city of New York, these facts having been embraced in the admission of facts agreed upon by counsel, and established by uncontradicted evidence.
    7. The auditor erred in distributing the balance on the account as provided in the last will and testament of said decedent.
    8. The auditor erred upon all the facts admitted agreed upon and proven in not awarding to John A. Singer one-half of the estate of his deceased wife after deducting the debts and necessary legal expenses out of the estate and the further sum of $5,000 under the act of assembly giving surviving husband the same right in his wife’s estate as she could take of his under the intestate law.
    Margaret S. H. Porter filed the following exception:
    The auditor erred in holding that the failure of John A. Singer to pay to or for his wife anything for her support after May 24,1907, under the facts found by the auditor “especially showing that she received of him and returned three hundred shares of the capital stock of the Singer Manufacturing Company which yielded a substantial income does not bring him within the provisions of the Act of assembly of May 4, 1855, P. L. 430, and that this Act does not bar his claim to participate in this distribution.”
    The only exceptions of John A. Singer to the finding of facts by the auditor is the fifth and sixth.
    These exceptions cannot be sustained. We find no competent evidence of any agreement to separate at or about the time stated in the fifth exception or that they lived separate and apart during the said time mentioned in the exception. It is true that Mrs. Charlotte Donnelly testifies that she entered into the employment of John A. Singer in superintending his house in the city of New York in October, 1904, and remained in that capacity to serve him in three different houses for seven years, that she saw Mrs. Adelaide Y. Singer there only one time, in May, 1907, that she cohabited with her husband from Wednesday to Saturday when she refused, on his request, to remain there with him, and left, and did not return.
    It is thus shown that he maintained for seven years a residence and home in New York city from 1904 which was not occupied or visited but for a few days by his wife, but it does not appear from her testimony that John A. Singer was residing in said homes habitually or that the house was regularly occupied by any person or persons except herself and the servant. On the occasion named, John A. Singer had come there from Clifton Springs, N. Y., where he and his wife had been cohabiting, to which place he stated to Mrs. Singer on her coming, the next day, he intended to return to her on Saturday following.
    The maintenance of a residence in the manner stated by the witness, without evidence of the proprietor of the same occupying it regularly and habitually without the presence of his wife at his home does not prove or tend to prove, a living separate and apart from his wife, and especially, when it is shown that at the time or immediately before they were cohabiting at another place and his expression of his intention to return to her at Clifton Springs within a few days. The evidence falls short of even raising an inference that John A. Singer and his wife were living separate during the time named; that they had separated subsequent to March 24, 1902, and that unconditional reconciliation' had taken place between them. No error has been found by the court in the auditor’s finding of facts covered by this exception, and therefore his findings of facts must be sustained.
    All the other exceptions filed by John A. Singer are to the conclusions of law and its application by the auditor.
    From the admissions filed and the evidence in the case, the auditor has found the following facts:
    It has thus been established and your auditor finds that:
    John A. Singer and the testatrix were married on June 11, 1885. In July, 1901, Mr. Singer, at the urgent demand of his wife, transferred and delivered to her absolutely 125 shares of the capital stock of the Singer Manufacturing Company, worth $30,250, subject to the payment of the debt of Mr. Singer of $16,500, for which the stock had been pledged, and 275 shares of the same stock worth $66,550, upon the oral stipulation that she shall receive the dividends on said 275 shares of stock during her lifetime, and if she survived her husband the same shall become hers absolutely, but in case of her decease before the death of her husband said 275 shares of stock “shall revert” to him.
    On December 31, 1901, John A. Singer filed in the court of common pleas of York county, Pennsylvania, a bill in equity against his wife, the above mentioned testatrix, in which he averred among other things, the transfer of the aforesaid 275 shares of the capital stock of the Singer Manufacturing Company to his wife, upon the aforesaid stipulation in relation thereto, and that he had reason to believe that she intends to wrongfully transfer said stock in violation of said stipulation, and prayed the court for an injunction restraining her from selling said stock, and for a decree requiring her to give security for the faithful performance of her duty in relation to the trust growing out of the transfer of said 275 shares of stock to her as aforesaid. On the same day a preliminary injunction was granted in accordance with the prayer in the plaintiff’s bill.
    On January 6,1902, Mr. Singer and his wife entered into a written agreement which was duly acknowledged by them and entered of record in the office of the recorder of deeds of said county on March 8, 1902, in which they recite the pending of the above mentioned bill in equity and the intention of Mr. Singer to institute other proceedings against her; that “divers disputes and unhappy differences have arisen between” them “for which reason they have consented and agreed to live separate and apart from each other during their natural lives,” and that “after due consideration and full and separate consultation with their respective legal counsel and advisers” they “have agreed upon the adjustment of their respective claims, rights, equities, trusts and reversions in and to all property, real, personal or mixed, now in the possession of or standing in the name of or to the use of them or either of them.”
    The agreement stipulates among other things, in the usual form, that they shall live separate and apart from each other, and that neither shall interfere with the other; that Mr. Singer shall in no measure be liable for his wife’s support; and that Mrs. Singer shall surrender to Mr. Singer his promissory note for $2,000 payable to Mrs. Singer, and his two promissory notes, one for $1,000 and one for $400, payable to Anna M. Small. By this same agreement Mrs. Singer transferred to her husband her interest in two life insurance policies, issued by The New York Life Insurance Company, upon her husband’s life, each for $25,000 in which she was beneficiary, also one hundred shares of the capital stock of the Singer Manufacturing Company; Mr. Singer relinquished all claims to all other property in her possession including the remainder of said stock and their dwelling house which he had previously conveyed to her. Mr. Singer also released, acquitted and discharged his wife “her representatives, heirs and assigns, from all and every claim, demand, suit, action, or accounting for or on account of any matter or thing either during her lifetime or after her death,” and released and surrendered “all right, title and interest as husband, tenant by the curtesy or otherwise howsoever, in any property, real or personal, which she now has or may be in any wise entitled to, or may hereafter acquire, to the end that she may acquire, possess, enjoy, convey, devise and bequeath the same with the same effect as if she were a feme sole; ” and Mrs. Singer as fully released her husband and his estate of all claim and demands during his lifetime and of all that she might have as his surviving widow. The above mentioned insurance policies and one hundred shares of stock and notes, were duly delivered to Mr. Singer in accordance with the terms of said agreement. Upon the execution of this agreement on January 6, 1902, Mr. and Mrs. Singer separated and continued to live separate and apart until March 24, 1902.
    On January 14, 1902, after leave granted by the court, on motion of counsel for plaintiff and defendant, the above mentioned suit in equity was withdrawn, and the preliminary injunction issued upon said bill was dissolved.
    On March 24, 1902, Mr. Singer and his wife entered into another written agreement which was duly acknowledged by them and entered of record in said recorder’s office on November 18, 1902, in which they recite among other things the execution of the above mentioned agreement of January 6, 1902; that said agreement “provided that the said parties thereto should thereafter live separate and apart from one another as part of the consideration of said agreement,” and that “said parties hereto have now become reconciled and desire to again live together as husband and wife, but in no other respect to modify any of the terms of said agreement.” By this agreement Mrs. Singer agreed “to resume the family relations ” with her husband. The agreement contains various stipulations relative to the conduct of the household affairs and the behavior of the parties toward one another. It provides that each shall pay one-half “of the domestic household expenses” and that Mrs. Singer shall pay her own personal expenses, including wearing apparel. It also contains these two paragraphs, which refer to the above mentioned agreement of January 6, 1902:
    “The said parties hereto do hereby republish, ratify and confirm all of the various stipulations and agreement contained in said contract of January 6, A. d. 1902, except the stipulation that the said parties shall live separate and apart.
    “ And it is hereby further expressly agreed and understood by and between the parties hereto that in case they shall fail to agree and shall again separate that this agreement and all its provisions shall immediately become null and void and that the said contract of January 6, 1902, shall be in all respects revived and reinstated as fully and completely as if this contract had never been made or entered into.”
    Subsequently Mr. and Mrs. Singer cohabited together for at least part of the time until May 24, 1907. The admitted facts are that they cohabited at intervals, but there is nothing before the auditor to show that they did not also cohabit between these intervals.

      Mr. Singer maintained a residence in New York city between October, 1904, and May 25, 1907. During this time Mrs. Charlotte Donnelly lived with him at his New York residence, “superintending his house.” About May 22, 1907, in addition to Mrs. Donnelly, “a maid” was also in this residence. Mrs. Singer in this time visited this residence of Mr. Singer but once for a period of four days. During part of this time Mr. and Mrs. Singer cohabited at intervals at different hotels and at a sanitarium. He paid the bills for both, but in a number of cases she refunded to him one-half of the charges for room and board and other common expenses and all of her personal expenses.
    About May 18, 1907, after they had been cohabiting at Clifton Springs, New York, for about eighteen days, Mr. Singer went to his above mentioned New York residence. Mrs. Singer followed him a day later, arriving at his residence on May 21, or May 22. She remained there until May 25, during which time she occupied the same room and bed with her husband. She left on May 25, after Mr. Singer requested her to stay and had offered to go with her wherever she wished to go, if she did not like it at his residence. About fifteen minutes before she left she said, “she would not live with him.” After this they never cohabited, and “from and after this date Mr. Singer never made any payments of money to her, or for her account.”
    Mrs. Singer died on July 19, 1910, without surviving issue. Her above mentioned will was duly probated.
    A very complete brief of authorities has been submitted by the learned counsel of John A. Singer in which a multitude of English decisions and decisions of other states are cited to establish the contention of this ex-ceptant, that the agreement in evidence of January 6, 1902, was completely abrogated by the reconciliation of the parties and their resumption of the marriage relation.
    The law is to the effect that a subsequent resumption of the marital relations by the parties to a separation agreement in the several jurisdictions terminates the articles of separation, but in one of the cases, Smith v. King, 107 N. C. 273 (12 S. E. Repr. 57), cited by the exceptant, it is said on page 276, “when she” (the wife) “returned to his roof, cohabited with him, and is supported by him, this annuls all agreements for a separation and for the support rendered necessary thereby. The law, if it recognizes, does not favor articles of separation, and will not construe them as to be valid after the parties have themselves cancelled the agreement to separate, by cohabiting together, unless it appears by the deed, plainly, that such separate support is to be continued notwithstanding any future reconciliation and cohabitation.”
    In the case under consideration, the estate for distribution was created by John A. Singer in his wife, by the transfer to her of the stock mentioned in the agreement unequivocally providing that he would not interfere with his wife’s estate before or after her death, by claiming any part of the saíne. At the time of the second agreement of March 24, 1902, it was positively declared and agreed in the reconciliation of the parties that the terms and conditions upon which they resumed the relation of husband and wife were that their intention in such resumption of the marriage relation was “not to modify any of the terms of the agreement of January 6, 1902, excepting those which provided that they shall live together; and expressly republished, ratified and confirmed “all the various stipulations and agreements contained in said contract of January 6, a. d. 1902, except the stipulation that the said parties shall five separate and apart.”
    This agreement was mutually binding on the parties. The wife had full power to contract under the Pennsylvania acts of assembly, notably the act entitled “An Act relating to husband and wife enlarging their capacity to acquire and dispose of property, to sue and be sued and to make a last will, etc.,” approved June 8,1893, P. L. 344.
    As we have seen, there is no evidence to establish separation between John A. Singer and his wife, after March 24, 1902, and a subsequent reconciliation without conditions, as contended by exceptant’s counsel. No separation after said period being proven, there could not be a subsequent unconditional reconciliation.
    The terms of the original agreement of separation as it was reaffirmed by the parties in their agreement of March 24, 1902, therefore continued, at the death of the decedent, Adelaide V. Singer. Even if the subsequent separation in December, 1904, and the unconditional reconciliation as contended for by exceptant’s counsel were proven, in the absence of proof to the contrary, the law would have presumed such reconciliation to have been upon the terms of their previous written agreements.
    The case of Burkholder’s App., 105 Pa. 31, decides: “A postnuptial contract, the main object of which was the settlement of differences between husband and wife which had caused a temporary separation, is founded upon sufficient consideration; and after it has been fully executed by husband and wife during their lives, a provision therein in favor of the wife’s issue by a former marriage, contingent upon the husband surviving his wife, and dying, will, after the happening of said contingency, be enforced in the settlement of the husband’s estate in the orphans’ court.”
    The auditor decided against the claim of the except-ant upon the authority of the last cited case and Fennell’s Est., 207 Pa. 309, with other cases, which in our opinion on the facts admitted and the evidence,. and found by the auditor, is clearly right and his decision must be sustained.
    We have had no case cited to us like this, where the husband has created an estate in his wife, and executed separation papers in which he absolutely releases all property rights in his wife’s estate during her life or after her death, where a like reconciliation took place under an agreement providing that the original separation agreement should remain stable in its provisions, as to property rights defined therein, where after the death of the wife the husband claimed against her will and was allowed to recover any share out of her estate, where the powers and liabilities of the parties to the contract are defined, as existing by law as in this commonwealth.
    We are of the opinion that the auditor’s finding of both law and fact are correct for the reasons stated in his report, and that his report should be confirmed.
    We need not consider the exception filed by Margaret S. H. Porter.
    The exceptions are dismissed at the cost of the exceptant, John A. Singer, and the report is confirmed.

      Errors assigned were in dismissing exceptions to auditor’s report.

      W. F. Bay Stewart, with him W. R. Beach, Edward Chapin and Frederick B. Gerber, for appellant.
    The reconciliation, the fact of which cannot be ignored or explained away wholly, did away with the separation agreement of January 6, 1902; and the attempted revival and reinstatement thereof, by the clauses to that effect, must fail: Westmeath v. Westmeath, Jacob R. 126; Durant v. Titley, 7 Price, 577; Hindley v. Westmeath, 6 .Barn. & Cress. 200; O’Malley v. Blease, 20 Law Times (N. S.), 899; Nicol v. Nicol, L. R. 31 Ch. Div. 524; Zimmer v. Settle, 124 N. Y. 37 (26 N. E. Repr. 341); Knapp v. Knapp, 95 Mich. 474 (55 N. W. Repr. 353); Kehr v. Smith, 87 U. S. 31; Shelthar v. Gregory,' 2 Wend. 422; Garland v. Garland, 50 Miss. 694; Roberts v. Hardy, 89 Mo. App. 86; Smith v. King, 107 N. C. 273 (12 S. E. Repr. 57); Galusha v. Galusha, 116 N. Y. 635 (22 N. E. Repr. 1114); Winter v. Winter, 191 N. Y. 462 (84 N. E. Repr. 382).
    The separation agreement of January 6, 1902, being rescinded and annulled by the subsequent reconciliation and cohabitation of the parties, was so rescinded and annulled in all its parts and provisions: O’Malley v. Blease, 20 Law Times (N. S.), 899; Nicol v. Nicol, L. R. 31 Ch. Div. 524.
    July 6, 1911:
    It has been uniformly held that reconciliation and cohabitation as husband and wife abrogate all provisions of a separation agreement, and the parties thereto thereafter stand in precisely the position relative to each other’s property that they occupied prior to the separation agreement: O’Malley v. Blease, 20 Law Times (N. S.), 899; Scholey v. Goodman, 1 Car. & P. 36; Nicol v. Nicol, L. R. 31 Ch. Div. 524; Knapp v. Knapp, 95 Mich. 474 (55 N. W. Repr. 353); Kehr v. Smith, 87 XT. S. 31; Wells v. Stout, 9 Cal. 479; Winter v. Winter, 191 N. Y. 462 (84 N. E. Repr. 382).

      Richard E. Cochran, with him Smyser Williams, for appellee.
    Whatever misgivings Lord Eldon and the other English jurists may have had as to the public policy of agreements of separation between husband and wife, the courts of Pennsylvania have recognized and enforced them in: Dillinger’s App., 35 Pa. 357; Hitner’s App., 54 Pa. 110; Com. v. Richards, 131 Pa. 209; Scott’s Est., 147 Pa. 102; Fennell’s Est., 207 Pa. 309.
    This case is ruled by Burkholder’s App., 105 Pa. 31.
   Opinion bt

Me. Justice Mestrezat,

In an elaborate report, the auditor found the facts and stated his conclusions of law. The learned court approved the findings of fact and sustained the conclusions of law in an opinion which correctly disposes of the questions raised on this appeal. The appellant has failed to convince us of error in the findings of fact or of law, and hence the decree must be affirmed.

Owing to “divers disputes and unhappy differences having arisen between” John A. Singer and his wife, Adelaide Y. Singer, they entered into the agreement of January 6, 1902, by which they “agreed to live separate and apart from each other during their natural lives,” and “agreed upon the adjustment of their respective claims, rights, equities, trusts and reversions in and to all property, real, personal or mixed, now in the possession of or standing in the name of or to the use of them or either of them.” Having executed the agreement, the parties separated, and lived apart until March 24, 1902, when they entered into another agreement in which they recite the execution of the former agreement, and that the parties had become reconciled and desire to again live together as husband and wife, “but in no other respect to modify any of the terms of the said (former) agreement.” The later agreement republished, ratified and confirmed all of the several stipulations contained in the contract of January 6, 1902, except the stipulation that the parties “shall live separate and apart.” The parties again resumed their marital relations. The appellant, who is the husband, contends that the parties separated again in 1904 and did not live together as husband and wife from that time until May, 1907, and requested the auditor and the court to so find. The request was declined, and it was held that there was no competent evidence of any agreement to separate in 1904, or that the parties lived separate and apart from that date until 1907. The learned court says: “As we have seen, there is no evidence to establish separation between John A. Singer and his wife after March 24, 1902, and a subsequent reconciliation without conditions, as contended by exceptant’s counsel. No separation after said period being proven, there could not be a subsequent unconditional reconciliation. The terms of the original agreement of separation as it was reaffirmed by the parties in their agreement of March 24, 1902, therefore, continued at the death of the decedent, Adelaide V. Singer.” Regarding this as an established fact, the contract of March 24, 1902, must be sustained and enforced.

Deeds and postnuptial agreements for the actual and immediate separation of husband and wife, based upon a good consideration and reasonable in terms, are valid and effectual both at law and in equity in this state. They may be legally entered into by the parties without the intervention of a trustee: Com. v. Richards, 131 Pa. 209. It must be conceded that the separation agreement of January, 1902, was valid and that its several covenants were binding on the parties. Had Mr. and Mrs. Singer continued to live separate and apart in conformity with its stipulations, neither could have successfully invoked the assistance of the court to annul or set it aside after the death of the other party. It is equally true and is the settled law of the state that a subsequent reconciliation and resumption of marital duties by the parties, not affected by any agreement, would abrogate or invalidate the contract of separation made in January, 1902: Hitner’s App., 54 Pa. 110. So much was conceded by the auditor and the court below. But the reconciliation of March 24, 1902, was in pursuance of the agreement of that date which set forth the terms on which the parties were to resume their relations as husband and wife and, as we have seen, republished, ratified and confirmed all the stipulations in the contract of January 6, 1902, except the stipulation that the parties should live apart. Save in this one particular, the . separation agreement of January, 1902, was the reconciliation agreement of March, 1902. The earlier agreement drops out of the case as effectively as if the stipulations therein had been inserted in terms in the later agreement. The rights of the parties depend entirely upon the last agreement which they unquestionably had authority to make: Fennell’s Est., 207 Pa. 309. It was not a deed of separation but of reconciliation, defining the rights of each in the property of the other. The “divers disputes and unhappy differences” which had existed between the husband and wife and which had caused their separation three months prior thereto were satisfactorily adjusted, and thereafter the marital relations of the parties were resumed under the March agreement. Under the findings of fact, there was no subsequent separation and reconciliation between the parties. The March contract was fully executed on the part of Mrs. Singer. She gave and did all she agreed to give and do. Her covenants were sacredly kept, and after her death, it is too late for her husband to demand that he be relieved from the performance of his part of the contract. Equity will not permit him to retain the “ claims, rights, equities, trusts and reversions in and to all her property” which she gave him, and after the contract had been fully executed by her and she is dead, allow him to rescind the agreement and, in violation of its stipulations, participate in the distribution of her estate. Equity neither sanctions nor enforces a fraud. The parties having the power to enter into the contract of March, 1902, and no fraud, overreaching or unfairness being alleged, and the wife having fully complied with her covenants, equity will compel the husband to observe his part of the agreement.

We agree with the auditor and orphans’ court that the case is ruled by Burkholder’s App., 105 Pa. 31, and Fennell’s Est., 207 Pa. 309, and the court having exhaustively reviewed the facts and law in its opinion, we regard any further discussion of the case as unnecessary.

Decree affirmed.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Caslow v. Strausbaugh, Appellant.

      Will — Construction—Fee simple estate — Presumption against intestacy.

    Where a testator gives to his wife “all real estate and all personal property of whatever kind and nature they may be to have and to hold or sell and convey the same at her own will and accord, and to pass title for the same and have the use of the proceeds thereof during her natural life,” without a gift to any other person, and without any disposition of the remainder, the will vests in the wife an absolute fee in the testator’s real estate.
    Argued May 16, 1911.
    Appeal, No. 129, Jan. T., 1911, by defendant, from judgment of C. P. York Co., April T., 1911, No. 127, for plaintiff on case stated in suit of Jacob Caslow and Malinda Berthold, Executor and Executrix of Margaret Caslow, Deceased, v. Isaac Strausbaugh.
    July 6, 1911:
    Before Fell, C. J., Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Case stated to determine marketable title to real estate. Before Bittenger, P. J.
    From the case stated it appeared that Samuel Caslow, husband of Margaret Caslow, died on March 11, 1888, seized in fee of the land in question. By his will he gave his real and personal property to his wife. The material portion of the will is quoted in the opinion of the Supreme Court.
    Margaret Caslow died on March 15, 1910, leaving a will by which she authorized her executors to sell her real estate at public or private sale. The executors contracted to sell the land in question to the defendant who refused to pay the purchase money alleging that the title was not marketable.
    The court entered judgment for plaintiffs for $3,730.50. Defendant appealed.

      Error assigned was in entering judgment for plaintiff on case stated.

      James St. Clair McCall, for appellant.

      Jos. B. Strawbridge, for appellees.
   Per Curiam,

The question presented by this appeal is whether the widow of. the testator took a fee under the following clause of his will: “And lastly, I give and bequeath unto my beloved wife Margaret all real estate, and all personal property of whatever kind and nature they may be to have and to hold or sell and convey the same at her own will and accord and to pass titals'for the same and have the us of the proceeds thereof during her natural life. And further I do appoint my son Jacob T. Caslow as agent for my wife to act in her place and under her instructions, as he may be requested by her, and no further if he shall live that long, if he should be called away she my wife is at liberty to celect a suteable person in his place.” This part of the will was preceded by a direction in relation to the payment of his debts and followed by the attestation clause. There was no gift to any other person and no disposition of a remainder.

It is evident that the testator’s intention was to provide for his wife alone. She was the sole beneficiary under his will and the estate he gave her had all the attributes of absolute ownership. Unless he gave her a fee he died intestate as to the remainder after the expiration of a life estate. Every presumption is against such an intention. “It detracts nothing from a fee for a testator to say that his devisee shall have the sole control of the property during her lifetime,” Snyder v. Baer, 144 Pa. 278; and “A devise, generally or indefinitely, with power of disposition carries a fee:” Witmer v. Delone, 225 Pa. 450.

The judgment is affirmed.


text:
    Pittsburg, Shawmut & Northern Railroad Company, Appellant, v. Keating & Smethport Railroad Company.

      Railroads — Crossing agreement — Gauge—Additional tracks — Acts of April 4, 1868, P. L. 68, May 18, 1876, P. L. 157, and March 18, 1875, P. L. 88.

    1. Where a railroad company permits another railroad company to cross its tracks, but reserves to itself the right to lay additional tracks from time to time across the tracks of the other railroad, it may thereafter lay an additional track at the crossing in question so as to secure a standard gauge in addition to the narrow gauge of its original construction.
    2. Where the charter of a railroad company incorporated in 1880, shows that the road did not exceed fifteen miles in length and also shows a subscription of $2,000 per mile and payment of ten per cent thereof, it will be presumed that the railroad company was organized under the general railroad Act of April 4, 1868, P. L. 62, as amended by the Act of May 13,1876, P. L. 157, and not under the Act of March 1-8, 1875, P. L. 28, relating to narrow gauge railroads, although the railroad was actually built with a gauge of only three feet.
    . 3. There is nothing in the acts of 1868 and 1876, which requires the gauge of a railroad to be stated in the certificate of incorporation, and if a gauge is stated, it may be treated as surplusage.
    4. Irregularities in the legal reorganization of a railroad company cannot be attacked in a collateral proceeding, such as a suit between two railroad companies as to a crossing at grade.
    Argued May 16, 1911.
    Appeal, No. 120, Jan. T., 1911, by plaintiff, from decree of C. P. McKean Co., June T., 1905, No. 1, dismissing bill in equity in case of Pittsburg, Shawmut & Northern Railroad Company v. Keating & Smethport Railroad Company et al.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Moschzisker, JJ.
    •Affirmed.
    Bill in equity for an injunction.
    Ormerod, P. J., specially presiding, filed the following opinion:
    This is a bill in equity instituted by the plaintiff to restrain the defendant from laying additional rails across the plaintiff’s road for the purpose of changing the said crossing from a narrow gauge to a standard gauge, and from operating the same as a standard gauge crossing.
    This bill was filed April 25, 1905. Proceedings were had thereon which resulted in the continuation of the preliminary injunction granted, until final hearing. No further steps were taken until the final hearing which began in July, 1910.
    The' rights of the plaintiff company were acquired through the merger and consolidation of the Mt. Jewett, Clermont & Northern Railroad Company, with other roads, by virtue of an agreement dated July 13, 1899, under the name of The Pittsburg, Shawmut & Northern Railroad Company.
    The rights of the defendant were acquired as follows: In the year. 1880, the Bradford, Bordell & Smethport Railroad Company was incorporated under the general railroad laws of Pennsylvania as a railroad less than fifteen miles in length, and constructed and operated through the borough of Smethport and along the point in controversy. Its railroad rights, etc., were leased to the Bradford, Bordell & Kinzua Railroad Company, a narrow gauge road by lease dated January 1,1881. Following the lease a mortgage was given which by the corporate action of both the Bradford, Bordell & Smethport and the Bradford, Bordell & Kinzua, became a lien upon all the rights and franchises, property of both these railroads and upon all the property, etc., that might be thereafter acquired.
    Mortgage foreclosure proceedings were had upon this mortgage and George L. Roberts appointed receiver.
    In 1891, subject to the lease of the Bradford, Bordell & Smethport Railroad Company, and the Bradford, Bordell & Kinzua Railroad Company, a sale was made on a fi. fa. of the railroad and property of the Bradford, Bordell & Smethport Railroad Company, subject, however, to a lien of the mortgage which was prior to the lien of judgment, the mortgage having been given in June, 1882, and the judgment obtained and entered in 1891.
    A few months afterwards in 1892, in consummation of the mortgage foreclosure proceedings, George Roberts sold all of the property, rights, franchises, etc., upon which the said mortgage was lien, to H. K. Pomeroy, et al., who organized the company under the Bradford, Bordell & Kinzua Railroad Company. In 1903, a judicial sale of the Bradford, Bordell & Kinzua Railroad Company was had and the purchasers thereof reorganized the same under the style of the Buffalo, Bradford & Kane Railroad Company. Subsequently the Buffalo, Bradford & Kane Railroad Company entered into a lease with the Keating & Smethport Railroad Company whereby the Keating & Smethport Railroad Company, a standard gauge railroad company has been and is now operating a railroad of the Buffalo, Bradford & Kane Railroad Company.
    In May, 1899, Mt. Jewett, Clermont & Northern Railroad Company, whose rights were afterwards conveyed to the Pittsburg, Shawmut & Northern Railroad Company, while constructing their railroad, attempted to cross the road of the Bradford, Bordell & Kinzua Railroad Company at grade, and the point in controversy. And by an agreement made May 25, 1899, between the Bradford, Bordell & Kinzua Railroad Company, as parties of the first part, and the Mt. Jewett, Clermont & Northern Railroad Company, as parties of the second part, marked as defendant’s exhibit No. 10, the said Mt. Jewett, Clermont & Northern Railroad Company was permitted under certain conditions and reservations on the part of the Bradford, Bordell & Kinzua Railroad Company to cross said road at grade. Said agreement provides, inter alia, as follows:
    “It is expressly understood and agreed that the party of the first part hereby reserves to itself, its successors and assigns, the right to lay additional rail or track or additional tracks from time to time and at any time at its pleasure across the track of the second party aforesaid, and the said second party agrees to pay from time to time and at all times all expenses incurred by the party of the first part in laying and maintaining such additional crossing or crossings, rail, track or tracks.”
    The defendant contends that this bill should be dismissed and the injunction dissolved for two reasons:
    1. That by the terms of the contract of May 25, 1899, they have the right to place the additional rails desired.
    2. That the Bradford, Bordell & Smethport Railroad Company was incorporated under the Act of April 4,1868, P. L. 62, and its supplement the Act of May 13, 1876, P. L. 157, and had a right to broaden its gauge.
    It is conceded that at the date of the contract of May 25, 1899, the Bradford, Bordell & Smethport Railroad Company was operating its road upon the location of the point in controversy and that the Mt. Jewett, Clermont & Northern Railroad Company was constructing its railroad and was attempting to cross the Bradford, Bordell & Kinzua Railroad and said point at grade. That the Bradford, Bordell & Kinzua Railroad Company had the prior location.
    The plaintiff does not deny that the rights and franchises of the Bradford, Bordell & Kinzua Railroad Company are now vested in the Buffalo, Bradford & Kane Railroad Company, or the lease by the Buffalo, Bradford & Kane Railroad Company to the Keating & Smethport Railroad Company.
    By the terms of the contract of May 25, 1899, the plaintiff obtained a right, which it is doubtful it would have acquired from the court, to cross at grade. That right it acquired on certain conditions and among them was a reservation of the right of the Bradford, Bordell & Kinzua Railroad Company to lay additional rail or tracks, “from time to time and at any time at its pleasure across the tracks of second party.”
    The language of this reservation is too plain, explicit and comprehensive to leave any doubt as to what was understood by the contracting parties. To deny their liability under the terms of the contract is a violation of the principles of equity.
    It is contended by the plaintiff that it is not bound by the contract for the reason that it alleges that the Bradford, Bordell & Kinzua Railroad Company at the time of making the said contract had no right to the prior location, for the reason that it never had acquired the franchise of the Bradford, Bordell & Smethport Railroad Company. That after the purchase by George Roberts of the franchises of the Bradford, Bordell & Smethport Railroad Company no reorganization of said road was had as required by act of assembly and that the title to said franchise, etc., is now in George Roberts as receiver of the Bradford, Bordell & Kinzua Railroad Company.
    While it does not appear that any proceedings to reorganize the said Bradford, Bordell & Smethport Railroad Company were taken by said George Roberts as receiver, it does appear that by foreclosure proceedings upon a mortgage executed and recorded nine years prior to the date of the judgment upon which the sale of 1891 was effected, the properties, rights, franchises, etc., of the Bradford, Bordell & Kinzua Railroad Company, and the Bradford, Bordell & Smethport Railroad Company, were sold by George Roberts as special master to H. K. Pomeroy et al., who did proceed to reorganize said road as the Bradford, Bordell & Kinzua Railroad Company, and that in the deed to said Pomeroy et al., all rights acquired by the said George Roberts as receiver for the Bradford, Bordell & Kinzua Railroad Company at said sale in 1891, was conveyed.
    It was in pursuance of this reorganization that the Bradford, Bordell & Kinzua Railroad Company was operating said road when the contract of May 25, 1899, was entered into. Whether there were any irregularities in the said reorganization, is not a matter to concern the plaintiff. It cannot be permitted to prove in a collateral proceeding, that a condition precedent to its full corporate existence had not been complied with. It was operating the road as a de facto corporation, and when the state does not interfere, the plaintiff cannot question its ability to make the contract between them: Com. v. Central Passenger Ry. Co., 52 Pa. 506; Dyer v. Walker, 40 Pa. 157; Spahr v. Bank, 94 Pa. 429.
    It is also contended by the plaintiff that the Bradford, Bordell & Smethport Railroad Company, having been chartered to build a railroad with a gauge not exceeding three feet, and that having built and operated a railroad of a gauge of three feet, it has no power to widen the gauge, and cites the Western N. Y. & Penna. Ry. Co. v. Ry. Co., 193 Pa. 127.
    It becomes material then to determine under which act said road is incorporated.
    An examination of the article of association shows that it was incorporated under the provisions of the act of April 4, 1868.
    There is nothing in the provisions of this act which requires the incorporators to set forth the width of the proposed road but provides, inter alia, that the capital stock shall be at least $10,000 per mile.
    As before stated the articles of association set forth that' it was chartered under the act of 1868. This act embraced all kinds of roads; it however permitted the incorporation of a road only upon a capital of $10,000 per mile, of which $9,000 per mile must have been subscribed and ten per cent paid in cash as a condition precedent to incorporation. Without compliance with this condition precedent no road could be chartered. But these conditions were modified by two acts of assembly. One was the Act of May 13, 1876, P. L. 157, by which a road not exceeding fifteen miles in length could be chartered upon the subscription of $2,000 per mile and payment of ten per cent thereof.
    As the Bradford, Bordell & Smethport Railroad was but ten' miles long and was chartered in 1880, it availed itself of this modification, and although there was a capital of $10,000 per mile, there was a subscription of but $2,000 per mile.
    The other modification of the conditions prescribed by the act of 1868 was by the provision of the Act of March 18, 1875, P. L. 28, that modification applied only to a case where a road having a gauge not exceeding three feet should by its incorporation seek to avail itself of its provision. It provides, “Whenever any number of citizens not less than nine may be desirous of forming a company for a road having a gauge not exceeding three feet, they may state in the article of association which they are required to make, and sign the capital stock of the company and $6,000 per mile for every mile of road contemplated to be constructed and the said article may be filed and recorded when $3,000 per mile is subscribed and ten per cent paid,” etc.
    In order to establish the fact that the road in controversy was chartered under the act of 1875, it would be necessary to show that it availed itself of the provisions of that act and this could only be shown by the articles of incorporation fixing the amount of capital stock at $6,000 per mile and $3,000 per mile subscribed, under the provisions of the act.
    There is nothing in the charter which would indicate that the incorporators were attempting to incorporate under the provisions of that act. But it clearly shows that they were incorporating under the provisions of the act of 1868, and its supplement of 1876. This being established they then come under the provisions of the Act of April 11, 1853, P. L. 366, which authorized railroad companies theretofore and thereafter to construct or change their gauge to such width as the directors may deem expedient. It is true that in the articles of association of the Bradford, Bordell & Smethport Railroad Company it is stated that the gauge should not exceed three feet, but if incorporated under the act of 1868, it was not necessary to state the gauge of the road and it may be treated as mere surplusage.
    The case of the Western N. Y. & Penna. Ry. Co. v. Ry. Co., 193 Pa. 127, does not rule this case as claimed by the plaintiff. In that case, the Olean, Bradford & Warren Railroad Company was a narrow gauge railroad incorporated under the act of 1875. The article of association shows that $3,000 per mile has been subscribed and ten per cent thereof paid. And they also show that the length of the road was to be fifty miles and the capital stock to be $6,000 per mile, which fully complies in every respect with the act of 1875.
    That the proposed construction of the crossing is practical and safe and the best known in railroading is substantially uncontradicted in this case.
    We do not think that the legislation or authorities bearing upon the question of overhead or under grade crossing have any application in this case. There are no pleadings and no issue raised which in any way relates to this question and upon which any adjudication by this court could rest.

      July 6, 1911:
    We are of the opinion that under all the evidence in this case the plaintiff’s bill should be dismissed and the injunction dissolved.

      Error assigned was decree dismissing the bill.

      John G, Johnson, with him Edwin E. Tait, Edgar W. Tail and Sheridan Gorton, for appellants.
    A railroad, under the narrow gauge class of the act of 1875, cannot broaden its narrow gauge crossing across another railroad to a standard gauge crossing: Western N. Y. & Penna. Ry. Co. v. Ry. Co., 193 Pa. 127.

      Fred D. Gallup, with him Thomas H. Murray and Claude W. Shattuck, for appellee.
   Per Curiam,

The decree dissolving the prehminary injunction and dismissing the bill is affirmed with costs, for the reasons stated in the opinion of Judge Oemeeod, specially presiding.


text:
    Commonwealth v. Buffalo & Lake Erie Traction Company, Appellant.

      Taxation — Corporations—Tax on loans.

    A corporation formed by the merger of a Pennsylvania corporation and a New York corporation, which has its principal office in New York must deduct from the interest on its bonds the four mills tax and pay the same to the treasurer of the state of Pennsylvania, where it appears that the bonds in question are owned by residents of Pennsylvania, but are pledged and physically held in New York as collateral security for debts due by the Pennsylvania owners of the bonds.
    Argued May 22, 1911.
    Appeal, No. 14, May T., 1911, by defendant, from judgment of C. P. Dauphin Co., Commonwealth Docket, 1908, No. 305, on case tried by the court without a jury in suit of Commonwealth v. Buffalo & Lake Erie Traction Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Appeal from tax settlement.
    From the record it appeared that the Buffalo & Lake Erie Traction Company is a corporation formed by the merger of a New York corporation and a Pennsylvania corporation, with its principal office in the state of New York. In its report for the year 1907, the company stated that $215,000 of its bonds were held during all the year 1907 in New York as collateral security for loans made by persons or corporations of the state of New York to individual residents of Pennsylvania. The coupons were paid for the year 1907, at the company’s office in Buffalo, New York.
    Kunkel, P. J., filed the following opinion:
    This is an appeal by the defendant from the settlement of an account against it for tax on its loans for the year 1907. Agreeably to the provisions of the Act of April 22, 1874, P. L. 109, it has been submitted to us for trial without a jury. The facts are not in controversy, having been agreed upon by the parties in a written statement, which has been filed in the case.
    DISCUSSION.
    Part of the tax claimed in this settlement is charged upon $215,000 of bonds issued by the defendant company to and owned by residents of this state, but delivered by them to and held during the year 1907 by corporations and individuals of the state of New York as collateral security for money borrowed by the former from the latter residents. It is contended by the defendant that these bonds are not taxable in this state under the Act of June 8, 1891, P. L. 229, which imposes a tax of four mills upon the nominal value of all bonds “owned, held or possessed.” by residents of the state, and that it is not therefore liable for the tax under sec. 4 of the Act of June 30, 1885, P. L. 193, for having failed to deduct it as directed by that act when it paid the interest on the bonds. The single question presented, as stated in the defendant’s written brief, is: “Are the bonds held in New York as collateral owned, held or possessed by any person resident, located or liable to taxation within this commonwealth?” The defendant claims that as the bonds were transferred and delivered as collateral security to residents of the state of New York, and there held during the year for which the tax is here charged, they were not owned by residents of this state. We are referred to numerous authorities in which are discussed the relative rights of the parties to a pledge or to the transfer of personal property for the purpose of collateral security and also to the definition of lexicographers of the word “ owner.” The authorities cited, however, can give us but little aid in determining the meaning of the word “owned” in the present instance. The question here is: How is it to be interpreted in the statute? So far as we are advised, as so used it has received no judicial interpretation. It is a familiar doctrine that statutes are presumed to use words in their popular sense, and that as between two meanings of a word the ordinary or popular meaning is to be preferred. If the word “ owned ” be interpreted in the sense in which it is commonly understood and used or even in its technical sense, can there be any doubt as to the ownership of the bonds in question? It is difficult to speak of the relation of the residents of this state to the bonds except as that of owners. It is true that the persons to whom they were pledged had a special property in them, as all bailees of property have in the articles held under the contract of bailment. But such special property neither in the legal nor in the ordinary acceptation of the term constituted them the owners. No one would think of speaking of the bailee of a horse for hire as the owner of the horse or of the pawnee of a watch as security for a loan as the owner of the watch or of any other bailee of property as the owner thereof. The bailee has only such dominion over the property bailed as is necessary to secure his rights and to accomplish the purpose of the bailment; and the delivery of property to another by the owner for a time and for specific purpose does not make the owner any the less the owner on that account in the ordinary use and understanding of the word. To hold that the residents of New York were the owners of the bonds in the present case would be just as contrary to the commonly understood meaning of the word as to hold that the mortgagee of real estate is the owner of the real estate mortgaged, or that the lessee of real estate is the owner of the real estate leased, and yet in each of these cases the title to the real estate is in the mortgagee and lessee to the extent of effectuating the intention of the parties. There can be no question but that the bonds upon which the tax is here charged, although delivered to nonresidents for a temporary purpose, were still owned by residents of the state within the meaning of the act of 1891. In Stanford v. San Francisco, 131 Cal. 34 (63 Pac. Repr. 145), where the question of the taxation of certain certificates of stocks and of certain bonds of foreign corporations pledged in New York for money borrowed by a decedent who was a resident of California was considered, it was held that such certificates of stocks and such bonds were taxable in the state of the decedent to him while living, and after his death to his estate, under the code which provided that the assessor must assess taxable property to the person by whom it was owned or claimed. In that case it was said that the shares of stocks and bonds pledged as collaterals to secure advances made thereon were assessable in the name of the pledgor, and that under that provision of the code the decedent was the owner of the shares and bonds by him pledged.
    , The fact that the bonds were physically out of the state cannot affect the question of their taxability. The owners were domiciled in this state and the bonds had their situs here also: Cooley on Taxation (3d ed.), 86, 87 and notes,

      Nor do we think, as suggested by the defendant, that the New York holders of these bonds would be taxable on them under the laws of that state. No doubt they would be taxable on the loan made by them to the Pennsylvania owners of the bonds, but the bonds were held to secure and represented that indebtedness. To tax the bonds also would be to tax the same debt twice. This certainly could not be within the contemplation of the revenue laws of New York.
    We therefore conclude:
    1. That the bonds in question were owned by residents of the state of Pennsylvania within the meaning of that term, as it is used in the Act of June 8, 1891, P. L. 229.
    2. That the bonds were taxable in the state of Pennsylvania.
    3. That the commonwealth is entitled to judgment.
    Wherefore, in accordance with the stipulation filed by the parties, judgment is directed to be entered in favor of the commonwealth and against the defendant for $855.02, unless exceptions be filed within the time limited by law.

      Error assigned was the judgment of the court.

      W. S. Snyder, with him M. E. Olmsted and A. C. Stamm, for appellant.
    The bonds were not taxable as they were physically out of the state and the interest was paid out of the state: New York, Lake Erie & W. R. R. Co. v. Com. 153 U. S. 628 (14 Sup. Ct. Repr. 952); Del. & Hudson Canal Co. v. Com., 156 U. S. 200 (15 Sup. Ct. Repr. 358).
    The Pennsylvania residents were not “owners” within the meaning of the act: Wilson v. Little, 2 N. Y. 443 (51 Am. Dec. 307); Brewster v. Hartley, 37 Cal. 15 (99 Am. Dec. 237); Anderson v. Waco State Bank, 92 Texas, 506 (71 Am. St. R. 867); Chambersburg Ins. Co. v. Smith, 11 Pa. 120; McNeil v. National Bank, 46 N. Y. 325; Muir-head v. Kirkpatrick, 21 Pa. 237; West Chester School Dist. v. Darlington, 38 Pa. 157; Phila. Ins., Trust, etc., Co.’s App., 17 W. N. C. 446; Price v. Hunter, 21 W. N. C. 306; Com. v. Lehigh Valley R. R. Co., 129 Pa. 429; State Tax on Foreign-Held Bonds, 82 U. S. 300.
    July 6, 1911:

      William M. Hargest, assistant deputy attorney general, with him John C. Bell, attorney general, for appellee
    The bonds were owned by residents of Pennsylvania: Buck v. Beach, 206 IT. S. 392 .(27 Sup. Ct. Repr. 712); Dempsey v. Harm, 20 W. N. C. 266; Munn v. McDonald, 10 Watts 270; Wilson v. Little, 2 N. Y. 443 (51 Am. Dec. 307); Com. v. Fall Brook Coal Co., 156 Pa. 488.
   Per Curiam,

The judgment is affirmed on the opinion of Judge Kunkel.


text:
    Commonwealth v. Excelsior Brick and Stone Company, Appellant.

      Taxation — Exemption—Manufacturing corporations — Stopping business.

    A manufacturing corporation which has been compelled to stop business by reason of the condemnation of most of its lands by a municipality, is thereafter not exempt from taxation, and its stock may be taxed on a fair valuation of its assets, consisting of its claim against the city for damages, and its remaining real estate.
    Argued May 22, 1911.
    Appeal, No. 12, May T., 1911, by defendant, from judgment of C. P. Dauphin Co., Commonwealth Docket, 1909, No. 94, on case tried by the court without a jury in suit of Commonwealth v. Exbelsior Brick and Stone Company.
    Before Fell, C. J., Brown, Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Appeal from tax settlement.
    Kunkel, P. J., filed the following opinion:
    This is an appeal by the defendant from a settlement of an account against it for tax on its capital stock for the year 1908. It has been submitted to the court for trial without a jury, agreeably to the provisions of the Act of April 22, 1874, P. L. 109. The facts are not disputed, and we find them to be as follows:
    The defendant company is a corporation organized for manufacturing purposes under the Act of July 18, 1864) P. L. 1102. Until September, 1903, it was exclusively engaged in the manufacture and sale of brick. Its paid up capital stock is $597,900, represented by its manufacturing plant located in Philadelphia, and including seventy-two acres of land. In September, 1903, the city of Philadelphia, under its power of eminent domain, condemned and appropriated more than fifty acres of its land for street and park purposes. Thereupon the company suspended business, and from that time has transacted no business whatever, except to sell the accumulated brick which it had on hand at the time, but has been awaiting the payment of damages for the land taken with the view of winding up its affairs and distributing its assets among its stockholders. It has no indebtedness. The viewers appointed by the court found the amount of damages suffered by the company because of the taking of its property to be $171,500, but upon appeal and trial in court, the jury fixed the damages at $375,000. The assessed value of that part of the real estate not taken and remaining to the company is $134,000. The company duly made its annual report to the auditor general, appraising its capital stock at $2.25 a share, or at the total value of $134,527.50. The accounting officers of the commonwealth not being satisfied with this appraisement assessed and valued the capital stock at $375,000, and settled an account against the company for the tax of five mills on such valuation, which amounted to $1,875, from which settlement this appeal was taken.
    DISCUSSION.
    The commonwealth claims the tax under sec. 21 of the Act of June 1, 1889, P. L. 420, as further amended by the Act of June 8, 1893, P. L. 353, which imposes upon every corporation an annual tax of five mills upon each dollar of the actual value of its whole capital stock. The defendant denies its liability for the tax, contending that it is exempt therefrom under the proviso of the act, which declares “that the provisions of this section shall not apply to the taxation of so much of the capital stock of corporations — organized for manufacturing purposes, which is invested in and actually and exclusively employed in carrying on manufacturing within the State, except companies engaged in the brewing or distilling of spirits or malt liquors, and such as enjoy and exercise the right of eminent domain; but every manufacturing corporation —shall pay the State tax of five mills, herein provided, upon such proportion of its capital stock, if any, as may be invested in any property or business not strictly incident or appurtenant to its manufacturing business, — it being the object of this proviso to relieve from State taxation only so much of the capital stock as is invested purely in the manufacturing plant and business.” The right of the defendant company to the benefit of this exemption must be clear, otherwise it is liable with all other corporations for the tax provided for in the act. It is at once manifest that the defendant is not entitled to the exemption. It ceased to operate its plant in 1904, intending to go out of business. It has not engaged in manufacturing since that time. Therefore, none of its capital has been actually employed in manufacturing since 1904. Instead, the greater part of its property representing its capital stock was then taken from it, and its capital stock has since been represented in part by that portion of its real estate remaining, and in part by its claim against the city of Philadelphia for the portion which was taken. It cannot be said, therefore, that any of such property is actually employed in carrying on manufacturing, nor can it be said that the claim which it holds against the city of Philadelphia is an investment in its manufacturing plant or business.

      Further, the company objects to the valuation placed upon its stock by the accounting officers. Ordinarily the valuation put upon capital stock by the officers of a company under oath is to be considered of no little weight, but it is not controlling. The officers of this company appraised the capital stock at the highest price for which it sold during the year 1908, but it does not appear under what circumstances the sale was made, whether it was a private or a public sale or whether those between whom the sale was had really knew the value of the stock. The value of the property and assets of the company as shown by the.local assessment and the amount of damages fixed by the jury in the condemnation proceedings is $509,000, and the company has no indebtedness.
    Having regard to all the elements which properly enter' into the value of capital stock and which ought to be considered, we cannot differ from the accounting officers, and therefore find that their valuation of $375,000 is the fair actual value in cash of the defendant company’s capital stock, or of so much thereof at least as is not invested in its manufacturing plant or business.
    We therefore conclude:—
    1. That the capital stock of the defendant company is liable for and not wholly exempt from the capital stock tax imposed by the Act of June 1,1889, as further amended by the Act of June 8, 1893, P. L. 353.
    2. That the defendant company is liable to the commonwealth for the capital stock tax of five mills on the valuation of $375,000 for the year 1908.
    3. Accordingly, judgment is directed to be entered in favor of the commonwealth and against the defendant company for $1,875 unless exceptions be filed within the time limited by law.

      Error assigned was the judgment of the court.

      Boyd Lee Spahr, with him Ellis Ames Ballard, for appellant.

      July 6, 1911:

      William, M. Hargest, assistant deputy attorney general, with him John C. Bell, attorney general, for appellee.
   Per Curiam,

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


author: Mr. Justice Stewart,

text:
    Dotson v. Foust, Appellant.

      Food law — Oleomargarine—Application for license — Discretion of dairy and food commissioner — Act of May 29,1901, P. L. 827.

    1. Under the Act of May 29, 1901, P. L. 327., relating to the sale of oleomargarine, the dairy and food commissioner cannot require that an application for a license to sell oleomargarine shall contain, anything except such matters as are calculated to affect the one single purpose of the act, namely, to advertise to the public the true nature and character of the product to be manufactured or sold, so that the imposition of a counterfeit resemblance may be prevented, and incidentally to facilitate discovery and detection when an attempt is made to evade the law.
    2. The dairy and food commissioner has no power to refuse a license to sell oleomargarine on the ground that at the time the application was made the applicant, who was then engaged in business under an existing license, was selling oleomargarine which upon examination was found to contain coloration and ingredients which caused it to resemble and imitate yellow butter.
    Argued May 22, 1911.
    Appeal, No. 9, May T., 1911, by defendant, from judgment of C. P. Dauphin Co., Commonwealth Docket, 1911, No. 1, awarding peremptory mandamus in case of R. C. Dotson, President of the Eastern Provision Company v. James Foust, Dairy and Food Commissioner of Pennsylvania.
    Before Fell, C. J., Brown, Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Petition for mandamus. Before McCarrell, J.
    The petition averred that the Eastern Provision Company was engaged in selling oleomargarine and butterine, and had made a proper application to the dairy and food commissioner for a license to sell oleomargarine, and that the dairy and food commissioner had refused the license without giving any reason therefor. The petitioner prayed for a mandamus commanding the issuance of a license. The dairy and food commissioner filed an answer which after admitting the material averments of the petition, and reciting the provision of the act of May 29, 1901, continued as follows:
    By virtue of said provisions the discretion is lodged in the said dairy and food commissioner to determine that the name and style under which the proposed business is intended to be carried on shall not be calculated to deceive or mislead the public as to the real nature of the business so proposed to be carried on, and by virtue of said provisions the said dairy and food commissioner is lodged with the discretion of determining that the business shall not deceive the public in that the applicant shall not sell oleomargarine, butterine or any similar substance which has not been made and kept free from all coloration or ingredient causing it to look like or resemble yellow butter; and in the exercise of such discretion the said dairy and food commissioner has the power to refuse a license to any applicant who intends thus to deceive the public, and the said dairy and food commissioner is vested with the further discretion of refusing to grant a license to an applicant who has heretofore deceived the public by selling oleomargarine or butterine, which has not been made and kept free from all coloration and ingredients causing it to look like and resemble yellow butter.
    In the exercise of the discretion thus vested in him, the said dairy and food commissioner obtained samples of the kind of oleomargarine or butterine which the said plaintiff was selling immediately before and at the time of filing the application for said licenses and which the said dairy and food commissioner believes the said plaintiff intends to sell under the licenses applied for, which said samples of oleomargarine and butterine do contain coloration and ingredients that cause the said product to resemble and be in imitation of yellow butter, and the said license was refused and the said plaintiff advised of the refusal of the same by a telegram to the said plaintiff from the said dairy and food commissioner, for the reasons herein stated.
    July 6, 1911:
    The plaintiff demurred to the answer.
    The court awarded a peremptory mandamus.

      Error assigned was in awarding mandamus.

      William M. Hargest, assistant deputy attorney general, with him Edward E. Beidleman and John C. Bell, attorney general, for appellant.

      W. H. Wilson, with him Lyman D. Gilbert, C. H. Backenstoe and U. P. Rossiter, for appellee.
   Opinion by

Mr. Justice Stewart,

The Act of May 29, 1901, P. L. 327, regulating the sale of oleomargarine, butterine, and similar products, provides that the application for a license to manufacture or sell such products shall contain an accurate description of the place where the proposed business is to be carried on, and the name and style under which it is proposed to conduct such business, in addition to such other matters as may be required to be stated therein by the dairy and food commissioner, to whom the application is to be made. Giving this latter provision relating to the power of the commissioner its widest signification, it cannot be so extended as to allow the commissioner to require anything to be inserted in the application except such matters as are calculated to effect the one single purpose of the act, namely, to advertise to the public the true nature and character of the product to be manufactured or sold, so that the imposition of a counterfeit resemblance may be prevented, and incidentally to facilitate discovery and detection when an attempt is made to evade the law. If the commissioner may go beyond this in his requirements, what limits can be assigned to his authority? The act requires that the application shall “be satisfactory to the dairy and food commissioner,” with this further provision, that if so found, “and the said name and style shall not, in the judgment of the dairy and food commissioner, be calculated to deceive or mislead the public as to the real nature of the business so proposed to be carried on, he shall issue to the applicant or applicants a license,” etc. A plain intendment here is that the application must conform to such reasonable rules and regulations as the commissioner may make with respect to form, and substance as well, so far as the rules and regulations with respect to the latter have for their object publicity, identification and discovery. There is not a suggestion in the act that the character of the applicant is to be a subject of inquiry, and were the commissioner to require an averment of good moral character in the applicant, with affidavits in support, he would be imposing a condition which, however salutary and protective it might be, would yet be without warrant in law. It is not the applicant who is to be satisfactory to the commissioner, but his application; and this latter being satisfactory, the act is mandatory; the commissioner shall issue the license. Independently of this, whatever may be the extent of the commissioner’s authority, under the provision of the act which empowers him to require other matters than those specified in the act to appear in the application, the return to the writ in this case does not show that the licenses applied for were refused on the ground that they omitted anything that was required either by the act or by any order or regulation of the commissioner. It is nowhere averred that the applications were in any respect defective or unsatisfactory. It is the applicant, not the application, that is here adjudged unsatisfactory. The insufficiency of such return is obvious in view of the mandate that if the application be satisfactory the commissioner shall issue the license applied for. The commissioner seeks to justify his refusal of the licenses on the ground that at the time the applications were made the applicant, who was then engaged in the büsiness under an existing license, was selling oleomargarine, or butterine, which upon examination was found to contain coloration and ingredients which causes it to resemble and imitate yellow butter. Assuming it to be true, what then? The act nowhere allows the commissioner to withhold a license because of abuse by the applicant of a former license; it does not even provide for a forfeiture of the license in case of conviction or violation of any of its provisions; and showing conclusively that no forfeiture was contemplated, it provides increased penalties by fine and imprisonment for a second offense committed by the licensee. The dairy and food commissioner is charged in express terms with the enforcements of all the provisions of the act. While thus charged' with large responsibilities, he is invested with an authority entirely commensurate; the constabulary of the state is placed at his command, and upon his own initiation, or through the constabulary, he may discharge this responsibility by bringing all offenders against the law to justice. This is the only way to make the act effective, and the only way that is contemplated in the act itself. The course pursued in this case by the dairy and food commissioner to give efficiency to the law was without warrant. The assignments of error are overruled, and the appeal is dismissed.


author: Mr. Justice Elkin,

text:
    Commonwealth v. Independence Trust Company.

      Taxation — Corporations—Bonus—Increase of capital, stock — Change of rate of bonus — Acts of April 29, 1874, P- A 78, 107, J.une 8, 189.1, P. L. 228, June 15,1897, P. L. 155, May 8,1899, P. L. 189, and February 9,1901, P. L. 8.

    1. Where a corporation organized in 1889, under the Act of April 29, 1874, P. L. 73, 107, with an authorized' capital stoek of $1,000,000, pays a bonus thereon of one-quarter of one per centum as fixed by the act of 1874, such a corporation, if it increases its stock in 1909, will be required to pay a bonus of one-third of one per centum on the increase as provided by the Acts of May 3, 1899, P. L. 189, and February 9, 1901, P. L. 3.
    2. There is nothing in the acts providing for the payment of a bonus upon capital stock to require the courts to hold that the rate is in the nature of a continuing contract protected by the constitution, and beyond the power of the legislature to disturb. The legislature may, therefore, increase the rate of the bonus, and make the new rate applicable to the increase of stock of corporations previously chartered.
    3. Where a corporation organized in 1889, with a capital of $1,000,000 on which it pays a bonus of one-quarter of one per centum, decreases its capital stock in 1903 to $75,000, and subsequently, in 1909, increases it to $2,000,000, the company will only be required to pay a bonus on the additional capital stock of $1,000,000 which is the amount on which no bonus has been paid, but it will be required to pay on such increase at the rate of one-third of one per centum.
    Argued May 22, 1911.
    Appeals, Nos. 13 and 15, May T., 1911, by plaintiff and defendant, from judgment of C. P. Dauphin Co., Commonwealth Docket, 1909, No. 172, for the Commonwealth on case tried by the court without a jury in suit of Commonwealth v. Independence Trust Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Appeal from tax settlement.
    From the record it appeared that the defendant was incorporated on July 29, 1889, under the general incorporation act of 1874, with an authorized capital of $1,000,000. On this amount it paid the bonus of one-fourth of one per centum, the rate then established by law. In 1903, it decreased its capital stock to $75,000, but in 1909, increased it again to $2,000,000. It paid into the state treasury the sum of $2,500 being a bonus of one-fourth of one per centum upon the second $1,000,000 of its capital stock, and claimed to be exempt from any further payment of bonus. A tax was, however, settled against it for bonus at the rate of one-third of one per centum upon $1,925,000. On appeal from the settlement the court in an opinion by Kunkel, J., entered judgment for the commonwealth for $2,312.50, which was a bonus on $1,925,000 at the rate of one-quarter of one per centum. Both the commonwealth and the trust company appealed.

      Errors assigned were the findings and judgment of the court.

      Wm. M. Hargest, assistant deputy attorney general, with him John C. Bell, attorney general, for the commonwealth.^
    It is submitted that this court did not mean to say in the case of Com. v. R. R. Co., 207 Pa. 154, that the word “authorized” in the act of assembly of 1899 applies only to the act which permits the increase of capital stock and not to the acts of the corporation in actually making the increase.
    Considered as a contract the charter of defendant requires bonus of one-third of one per centum.
    A bonus is not a tax. It is a consideration which the corporation pays for the right conferred by the state upon it to do business: Com. v. Erie & Western Transportation Co., 107 Pa. 112.
    The state reserved the right to alter the contract, provided no injustice be done to the corporators. The constitution of Pennsylvania is part of its charter: Oliver v. Lee & Co.’s Bank, 21 N. Y. 9; Iron City Bank v. Pittsburg, 37 Pa. 340; Consolidated Gas Co. v. Mitchell, 1 Dauphin County, 71.
    The legislature is the final judge of what is injurious and when: Wagner Free Institute v. Philadelphia, 1 Pa. C. C. Rep. 256; Wagner Free Inst.’s App., 116 Pa. 555; Wagner Free Institute v. Philadelphia, 132 Pa. 612.

      W. S. Snyder and M. E. Olmsted, with them A. C. Stamm, for the Independence Trust Company.
    Appellant company having paid bonus upon its $2,000,000 of capital stock cannot be compelled to pay on any part thereof a second time: Com. v. Easton Bank, 10 Pa. 442; Com. v. American Machine Co., 2 Dauphin County, 27; Com. v. R. R. Co., 150 Pa. 312.
    July 6, 1911:
    Appellee company is not subject to provisions of acts of 1897 and 1899: Com. v. R. R. Co., 207 Pa. 154; Com. v. Ry. Co., 207 Pa. 160.
    If any act of the legislature does increase the rate of bonus above one-fourth of one per centum it is unconstitutional: Com. v. Transportation Co., 107 Pa. 112.
   Opinion by

Mr. Justice Elkin,

These are cross appeals from the same judgment and will be disposed of in one opinion. In one case the commonwealth contends that the bonus should have been computed at the rate of one-third of one per centum upon the actual increase of the capital stock, while the learned court below sustained the contention of appellee by holding that the bonus rate applicable under the facts presented is one-fourth of one per centum. A brief reference to the legislation requiring the payment of a bonus to the commonwealth for the privilege of incorporation under our laws, or of increasing capital stock, will be necessary to a proper understanding of the question here involved. The general incorporation Act of April 29, 1874, P. L. 73, provides for the payment of a bonus of one-quarter of one per centum upon the amount of capital stock authorized to be issued, in two equal installments, and a like bonus upon any subsequent increase thereof. The first installment to be paid when the company is incorporated, and the second one year thereafter. It was further provided that no company shall have or exercise any corporate powers until the first installment of bonus is paid, and that letters patent shall not issue until the governor is satisfied that the first installment has been paid to the state treasurer. This remained the law until 1897 when the legislature thought proper to increase the rate of bonus from one-fourth to one-third of one per centum. The Act of June 15, 1897, P. L. 155, was an amendment to the forty-fourth section of the act of 1874. It not only increased the rate but required the entire bonus to be paid in advance. While in terms it applied to every company incorporated under the act of 1874, with certain exceptions named in the act, some confusion arose in its application because all companies incorporated prior to its approval paid at a different rate and it was contended that the new rate could not be made applicable to old companies, or even to increases in the capital stock of old companies made after the new law became operative. It is true, of course, that all companies incorporated prior to the act of 1897 paid a bonus at the rate of one-fourth of one per centum as fixed by the act of 1874, and when the bonus was paid at the rate then fixed by law the commonwealth had no further claim on this account. But this does not mean that a contract was entered into between the commonwealth and the corporation that the bonus rate should always remain the same and that the legislature could not, if deemed wise or expedient, increase the rate without violating a contractual relation. We see nothing in the law providing for the payment of a bonus upon capital stock to require us to hold that the rate is in the nature of a continuing contract, protected by the constitution, and beyond the power of the legislature to disturb. The rate of bonus to be charged for the privilege of incorporating, or for increasing capital stock, is a legislative question, and the legislature has been attempting to cover every phase of it. In 1899 an act was passed more comprehensive in terms than the former acts and intended to include all corporations, and all increases of capital stock, except such as are specifically exempted. This is an original act and is not in the nature of an amendment to or supplement of any former statute. It applies to corporations hereafter created and to “companies heretofore incorporated upon any increase of their capital stock hereafter authorized.” It seems perfectly plain that the legislature intended to make the provisions of this act broad enough to cover the whole situation. The bonus of one-third of one per centum is to be paid by all corporations created after its passage and by all companies incorporated prior to that time upon such increases of capital stock as shall be subsequently authorized. In the present case the corporation was created prior to the passage of the acts of 1897 and May 3, 1899, P. L. 189, and therefore the bonus on the original capitalization was one-fourth of one per centum and this was paid. It increased its capital stock in 1909 and the question to be determined on this appeal is whether the bonus on the increase shall be paid at the rate of one-fourth or one-third of one per centum.

It is argued for appellee that the act of 1899 does not apply because the increase was not authorized after the passage of the act. In other words, that the'legislature authorized the increase by the Act of June 8, 1891, P. L. 223, and that the legislative authorization to increase capital stock determines the rate of bonus to be paid and not the act of the corporators in voting for such increase. This raises an interesting question. The act of 1874 limited the amount of capital stock to be issued by a corporation to $1,000,000. The act of 1891 permitted $10,000,000 to be issued, while the Act of June 13, 1893, P. L. 417, authorized an issuance of $30,000,000. This was followed by the act of 1901 which permitted corporations to have an unlimited amount of capital stock to carry out the corporate purpose. It is now contended that the bonus acts of 1897 and 1899 had reference to this general authorization to increase the capital stock of all corporations. The acts do not say so and such a construction would do violence to their spirit and purpose. These are revenue acts and should be construed so as to effectuate the purpose of their enactment. Their provisions should not be frittered away by technical refinements not intended to be controlling in the administration of revenue laws. The acts of 1874, 1891, 1893 and 1901, fixing limitations upon the amount of capital stock to be issued, are of general application and relate to all corporations. These acts prescribe the limits within which corporations may issue capital stock. The amount of capital stock to be issued by a corporation within these limits depends upon the act of the corporators. The corporators, determine whether the capital stock shall be $1,000,000, or $2,000,000, or $30,000,000, and when they do so determine, the bonus is computed on this basis. If there be any doubt about this being the proper interpretation of the acts of 1897 and 1899, the legislature made clear its intention in the third section of the Act of February 9, 1901, P. L. 3. It is there expressly provided as follows: “Upon the actual increase of the capital stock or indebtedness of such corporation, made pursuant thereto, it shall be the duty of the president or treasurer of such corporation, within thirty days thereafter, to make return to the secretary of the commonwealth, under oath, of the amount of such actual increase made, and concurrently therewith such corporation shall pay to the state treasurer for the use of the commonwealth, such bonus on the actual increase shown by said return as shall then be prescribed by law.” Here then is the clear expression of the legislative intention that the bonus shall be charged upon the amount of increase fixed by the corporators and at the rate in force when the increase is actually made. This is the law as the legislature has written it and we are bound by it. But it is argued that Com. v. R. R. Co., 207 Pa. 154, is authority for a different rule. The facts of that case differentiate it from the case at bar. It was there held that the railroad company had the authority under its charter to increase its capital stock to $150,000 per mile without the payment of any bonus and that the act of 1901 had no application to the facts of that particular case. In the present case it is not even contended that appellee had authority under its charter to increase its capital stock without paying a bonus. It is conceded that a bonus must be paid on the increase and the only question is as to the rate. Clearly under the act of 1901 the rate is one-third of one per centum and the amount is the actual increase shown by the return of the president or treasurer of the corporation after the corporate election authorizing the same.

In the other case the appellant company contends that the actual increase of capital stock upon which the bonus is to be paid is $1,000,000, while the commonwealth asserts it is $1,925,000. The company was originally incorporated for $1,000,000 and upon this amount the bonus was fully paid. Subsequently the capital stock was either decreased or withdrawn so that only $75,000 remained outstanding. At a still later date there was a reorganization and the capital stock was increased to $2,000,000. As the situation stands the commonwealth has received a bonus on $1,000,000, and if now permitted to collect a bonus on an additional $1,925,000, it will then have been paid a bonus on $2,925,000, although in fact the corporation never issued more than $2,000,000 of capital stock. The position of the commonwealth in this respect is technical and entirely ignores the equities of the case. The evident intention of the legislature was to impose a bonus charge upon the amount of capital stock and not to exact more than the total capitalization warrants. When an incorporated company pays a bonus upon the amount of its original capital, and upon any subsequent increases thereof, the requirements of the law have been satisfied. The burden is always on the commonwealth to establish the necessary facts to sustain a claim for taxes or revenue. Upon the record here presented there is a total capitalization of $2,000,000, with a bonus paid on $1,000,000, and we see no occasion either in law or equity to require the payment of a bonus on $2,925,000, which is $925,000 more capital stock than the company ever issued. The record does not give any information as to the steps taken to reduce or increase the amount of capital stock, nor is it necessary for the purposes of this case that it should, but it does show the amount of stock now authorized to be issued and the amount of the original capital upon which a bonus was paid. The difference is the amount on which no bonus has been paid, or at least the full bonus of one-third of one per centum has not been paid. The company therefore owes the commonwealth what remains unpaid on the additional capital stock of $1,000,000 at the rate of one third of one per centum.

Judgment reversed and record remitted with instructions to modify and enter judgment in favor of the commonwealth in accordance with the views herein expressed.


text:
    Commonwealth ex rel. v. Union Surety & Guaranty Company.

      Auditors — Findings of fact — Review.
    An auditor’s findings of fact based upon sufficient evidence and confirmed by the court below will not be reversed by the appellate court in the absence of manifest error.
    Argued May 22, 1911.
    Appeal, No. 6, May T., 1911, by Tweedie Trading Company, from decree of C. P. Dauphin Co., Commonwealth Docket, 1904, No. 26, dismissing exceptions to auditors’ report in case of Commonwealth ex rel. Hampton L. Carson, Attorney General, v. Union Surety & Guaranty Company.
    Before Fell, C. J., Brown, Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Exceptions to report of John E. Fox and Charles F. Brown, auditors. Before McCarrell, J.
    The opinion of the Supreme Court states the facts.

      Error assigned was the decree of the court.

      Louis B. Runk, with him John R. Read and H. B. Gill, for appellant.

      David J. Myers, for appellee.

      July 6, 1911:
   Opinion by

Mr. Justice Elkin,

Appellant, a trading corporation of the state of New York, presented a claim in the court below against the insolvent estate of the Union Surety & Guaranty Company and now complains because it was disallowed. The claim is for damages and is based upon an alleged breach of contract to guarantee bonds of the Carolina Steamship Company. The record is voluminous and the facts somewhat complicated. The claim in the first instance was fully considered by the auditors appointed by the court to make distribution of the fund in the hands of the receiver and afterwards carefully reviewed by the court in passing upon the exceptions to the auditors’ report. The auditors and the learned court below agree that under the facts no valid claim for damages exists against the insolvent estate. The learned court finds that the claim is without merit and among other things says: “There was no breach of contract because there never was any compliance with the conditions precedent to the performance of any act or duty by the surety company. In this view of the case it is entirely unnecessary to discuss the proper measure of damages. For these reasons we have no hesitation in concluding that this claim was properly disallowed by the learned auditors.” The negotiations and contractual relations relied on to sustain this claim for damages were between the steamship company, the surety company, and the Tweedie Trading Company of New Jersey, which latter company has long since been dissolved and is not a claimant here. The learned court below has found as a fact that the evidence is not sufficient to show that the Tweedie Trading Company of New York, the present claimant, had acquired the rights of the Tweedie Trading Company of New Jersey, upon which the claim must depend, if indeed it ever did exist. This the court gives as an additional reason why the claim cannot be sustained. The report of the auditors and the opinion of the court in dismissing the exceptions as well as the evidence introduced at the hearings have been examined with care to discover whether any reversible error was committed in the findings made or in the conclusions reached. The case depends upon the facts and cannot be reversed unless for manifest error. We fail to find any such error. The whole question was most carefully and intelligently considered by the learned court below and we cannot do better than express our approval of the findings, reasons and conclusions set forth in the opinion dismissing the exceptions to the auditors’ report.

Decree affirmed at the cost of appellant.