text:
    Rodgers’ Contested Election.

      Election law — Ballots—Marking ballots — Stickers—Obliteraiion of printed matter.

    1. Under the Uniform Primaries Act of Feb. 17, 1906, P. L. 36, the only proper mode of voting for persons whose names are not already on the ballot is by inserting their names in the blank spaces prepared therefore.
    2. The affixing of a “sticker” containing the name of a candidate not printed on the ballot, in such a manner as to obliterate in whole or in part the name of an opposing candidate printed on the ballot, renders the vote for the office in question illegal and void.
    3. Where a ballot is marked with two X’s, one made by pencil opposite the name printed upon the ballot and the other printed upon the sticker pasted over such name, the real intention of the voter is not shown with sufficient definiteness to comply with the law.
    Mr. Justice Mestrezat dissents.

      Argued Oct. 17, 1911.
    Appeal, No. 38, Oct. T., 1911, by C. G. Elwood, from, judgment of C. P. No. 1, Allegheny Co., Sept. T., 1910, No. 110 in the Matter of the Contest of the Election of John S. Rodgers to the City and County Committee of the Republican Party.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Petition in election contest. Before Ford, J.
    The facts are stated in the opinion of the Supreme Court.
    The appearance of ballot of the first class referred to in the opinion of the Supreme Court was as follows:
    CITY AND COUNTY COMMITTEE.

      The form of ballot of the second class is sufficiently described in the opinion of the Supreme Court.

      Error assigned was the order sustaining the petition.

      George N. Chalfant, with him J. McF. Carpenter and E. B. Vaill, for appellant.
    — The pasting of the sticker bearing the name of Rodgers over the name of Elwood invalidated the ballot as to Rodgers: McCowin’s App., 165 Pa. 233; Redman’s Election, 173 Pa. 59; Lawlor’s Contested Election, 180 Pa. 566; Com. v. Blankenburg, 218 Pa. 339.

      William, K. Johnson, for appellee.
    — The ballot was properly prepared: Dewalt v. Bartley, 146 Pa. 529; People ex rel. Arnold Gregory v. Love, 63 Barbour (N. Y.) 535; People ex rel. Gurdon O. Williams v. Cicott, 16 Mich. 283; Wheelock’s Contested Election, 82 Pa. 297; East Taylor Township Supervisor’s Election, 17 Pa. C. C. R. 657; Hughes’ Contested Election, 3 Lack. Jurist 313.
    February 5, 1912:
   Opinion by

Mr. Justice Moschzisker,

A primary election was held in the tenth district of the eleventh ward of the City of Pittsburgh on January 4, 1910, at which C. G. Elwood and John S. Rodgers were rival candidates for the city and county committee of the Republican party. The name of the former was printed upon the official ballot in the space designated for that purpose, while that of the latter was not upon the ballot, all of the votes cast for him being inserted either in writing or by stickers. The election board certified seventy-eight votes for Rodgers and seventy-three for Elwood. Upon a petition alleging that stickers were improperly used upon certain of the ballots cast for Rodgers, a recount was had, and the Commissioners decided that fifty-seven of these ballots were illegally marked. On appeal the court below reversed the decision of the Commissioners, held the ballots in question legal, and directed a certificate of election to be issued to Rodgers. The present appeal is from this decree.

There were two classes of ballots cast which the appellant contends should not have been counted for Rodgers, and in both printed stickers were used. The first of these stickers read thus: “For City and County Committee. John S. Rodgers. X,” the “X” being in print. All of the ballots in this class were also marked with a pencil “X” in the square printed to the right of the name of Elwood, the letter name being entirely covered by stickers pasted fast over it. The other class had stickers of the same sort attached at a like place, but not pasted fast over the entire name of Elwood; they were merely affixed to the right of the name, so as to obscure totally the official square opposite the same but left partially free so that they might be raised and the name of Elwood made visible. In this latter class it was impossible, without tearing off the stickers, to ascertain whether or not there was a pencil cross in the official square thus covered.

The only directions in the Primary Election Act as to the manner in which tickets shall be marked are found in section 4, which prescribes the form of the ballot, as follows: “Make a (X) in the square to the right of each candidate for whom you wish to vote. If you desire to vote for a person whose name is not on the ballot, write or paste his name in the blank space provided for that purpose.” Here the voters who cast the ballots in question did not adhere to the provisions of the Act or the requirements of the law. They desired to vote for a person who was not on the official ballot, but instead of writing or pasting his name under the proper designation of the office to be filled in the space beneath the printed name of Elwood, they placed a sticker directly over that name; one class making the sticker fast so as entirely to obliterate the name of Elwood, and the other making it fast so as to obliterate the square to the right thereof and to cover the name as before described. More than this, the stickers not only had the name of the candidate, the square and an “X” printed thereon, but also the designation of the office. We feel that under the doctrine of our decisions the votes in controversy were void and should not have been counted.

Section 4 of the Act of 1906 (P. L. 36) provides: “The voter may designate his choice, as is indicated by the instructions shown on the form of ballot above set forth;” this, according to our cases, must be taken to mean that he cannot do it in some other and different way. In Lawlor’s Contested Election, 180 Pa. 566, 570, slips, such as those used in this case, containing the name of a candidate and the designation of an office, were pasted in the blank space for that purpose, and, although these slips in nowise obliterated or obscured the other names or printed matter upon the ballot, the Court held that the vote could not be counted, saying, “The only prescribed mode of voting for persons whose names are not already on the ballot is by inserting their names in the blank spaces prepared therefor. * * It is the name only that is to be thus inserted, not the title of the offices to be filled. The latter is already printed there and constitutes part of the ballot prepared for the use of voters.” In McCowan’s Appeal, 165 Pa. 233, 237, where slips resembling a party column, with names, designations of offices and directions how to vote, were pasted over such a column, the court held the ballot invalid and, inter alia, said: “The name or names, as the case may be, cannot be inserted anywhere * * * * , but only in the appropriate blank spaces prepared therefor * * * * ; it may be done any appropriate way, such as by writing, * * * or by covering the proper blank space, in whole or in part, with a * * * sticker, securely attached to said space by adhesive paste or other suitable material, on which ticket or sticker is printed or written a name or names not already on the ballot. * * * * In so far as the mode of voting is thus specifically prescribed by the Act, all other modes are, by necessary implication, forbidden. * * * * To hold, as we are virtually asked to do by appellants, that by virtue of the authority given the voter to insert, in the blank spaces provided therefor, names not already on the official ballot, he may so use a previously prepared slip ticket, given to him by an outside party, as entirely to cover the right hand column of the official ballot, and thus effectually obliterate or conceal everything printed thereon, would not be construction but judicial legislation of the worst type.” In Redman’s Election, 178 Pa. 59, 64, some of the ballots were marked with an “X” in the square opposite the name of a candidate and the same name was inserted by the voter in the blank space provided for that purpose. The court said: “If the voter’s first act in preparing his ballot, was the ‘insertion’ of the name found in the blank space, he had no right, whatever, to afterwards attempt to vote by ‘marking’ for either of the candidates for justice of the peace whose names are printed in the left hand column. On the other hand, if his first act in preparing his ballot was marking with a cross (X) as appears in <he left hand column, he had no right to afterwards ‘insert’ the name ‘John S. Lowry’ in the blank space. It was thus manifestly impossible for the election officers, or anyone other than the voter himself, to determine which of the acts, — that of ‘marking’ in the left hand column or that of ‘writing’ the name ‘John S. Lowry’ in the blank space, — was first in order of time or whether the voter intended by both acts to vote for two persons or for only one and the same person, or, in brief, what may have been his purpose in doing what he is admitted to have done in preparing his ballot. When the election officers came to count the votes, it must have been quite evident to them, on inspection of the ballot in question, that the specific mode of voting prescribed by the Act had been disregarded by the voter, and hence they were clearly right in refusing to count the votes for anyone. It was plainly a vitiated, illegal ballot made so by the act of the voter himself. If such an utter departure from the positive requirements of the Act was sanctioned or encouraged, either by election boards or courts, it would lead to the most serious consequences. Under the new ballot law, it is not enough that the intention of the voter may possibly be ascertained, or his irregular and equivocal acts explained by evidence de hors his ballot. The purpose of the legislature, in prescribing the form of ballot and specifically directing how it shall be prepared and used by the voter, was to avoid all such inquiries and the consequences likely to result therefrom. It was intended that the ballot, when prepared by the voter and delivered to the proper election officer, should be per se self-explanatory. There is no good reason why it should not be so.”

It is true that none of the cases just reviewed was under the Primary Election Act, but cases arising under that statute are governed by the same principles as those under the general election law; in fact the Act of 1900 expressly provides, “Primaries shall be conducted in conformity with the laws governing' the conduct of general elections, in so far as the same are not modified by the provisions of this Act or are not inconsistent with its terms.” Aside from the authorities, to allow a sticker with the designation of an office and a printed “X” upon it to be used, would go far to defeat the important provision of the Primary Law to the effect that “No elector shall be permitted to receive any assistance in marking his ballot unless he shall first make an affidavit that he cannot read the names on the ballot, or that by reason of physical disability he is unable to mark his ballot,” as it would render practicable the grossest kind of assistance outside of the booths. Furthermore, where the ballot is marked with two X’s, one made by pencil opposite the name printed upon the ballot and the other printed upon the sticker pasted over such name, the real inténtion of the voter is not shown with sufficient definiteness to comply with the law. Lastly, to permit stickers to be pasted over names printed upon the official ballot, would put it in the power of corrupt election officers easily to make changes upon the face of the ballot, after the votes had been cast, of a character which it would be almost impossible to discover by subsequent inspection.

While it may be that the Court in this instance correctly guessed the intention of the voter, yét the fifty-seven mutilated ballots were not marked in accordance with the instructions contained in the Act of Assembly, and under the well established doctrine in this State they should not have been counted; to permit the counting of such ballots would be a precedent fraught with grave dangers for the future. If the designation of the office had been eliminated and a one-line sticker employed, there was ample room for its use in the appropriate place directly under the name of Elwood, and the Court below finds that this space was sufficient in which to write the name of Rodgers, or, with care, to paste the large two-line sticker which was used, without covering or interfering with other printed matter upon the ballot. Under the circumstances, the votes in question should have been declared illegal and not credited to anyone.

The assignments of error are sustained, the decree is set aside and the record is remitted with directions to enter a final decree in accordance with the views above indicated.

Mr. Justice Mestrezat, dissents,


source: Caselaw Access Project

author: Mr. Justice Mestrezat,

license: Public Domain

text:
    Murray’s Estate.

      Decedents’ estates — Sale of real estate — Price Act — Conversion —Wills.

    1. Where a will gives no power to sell real estate, does not blend realty and personalty in such a way as to show a clear intent to create a fund and bequeath the same as money, and does not disclose an absolute necessity to sell real estate, but after the will is probated, the land is sold under proceedings instituted under the Price Act of April 18, 1853, P. L. 503, the record of which shows the necessary jurisdictional averments and the specific intent to bar contingent and vested remainders and executory devises, the fund created by the sale will be deemed real estate for the purposes of distribution.
    2. Where a testator provides: “all the rest and residue of my estate, real, personal and mixed, I direct to be divided into three equal parts or shares,” and these parts or shares are separately given to trustees for the respective parties, there is no such blending of realty and personalty as- to convert the real estate into personal estate.
    3. Authority given by a will to trustees “to make from' time to time such investments or changes in the investments of the estate and money herein given to them in trust as may become necessary, or they or the survivor of them may deem advisable,” does not in itself work a conversion of realty into personalty.
    Argued Oct. 17, 1911.
    Appeal, No. 57, Oct. T., 1911, by James D. Murray, Guardian of James R. Murray, from decree of O. C. Allegheny Co., Oct. T., 1910, No. 58, dismissing exceptions to adjudication in Estate of Anthony S. Murray, Jr., Minor, (now deceased).
    Before Fell, C. J., Brown, Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Reversed.
    Exceptions to adjudication. Before Miller,- J.
    The facts are stated in the opinion of the Supreme Court.

      Errors assigned were in sustaining exceptions to adjudication.

      James D. Murray, with him George C. Burgwin, for appellant.
    — There was no general equitable conversion of her entire residuary estate worked by the terms and provisions of the will of Annie S. Murray: Yerkes v. Yerkes, 200 Pa. 419; Painter v. Painter, 220 Pa. 82; Darlington v. Darlington, 160 Pa. 65.
    Nor was there an absolute necessity to sell in order to execute the will now being construed, such that an intention to convert will be implied: Painter v. Painter, 220 Pa. 82; Caldwell v. Snyder, 178 Pa. 420.
    There was no such a blending of realty and personalty by Mrs. Murray in her will, as to clearly show that she intended to create a fund out of both real and personal estate and to bequeath the same as money: Perot’s App., 102 Pa. 235; Painter v. Painter, 220 Pa. 82.
    There was no power in the trustee to sell real estate. Dalrymple’s Estate, 215 Pa. 367; Sill v. Blaney, 159 Pa. 264; Darlington v. Darlington, 160 Pa. 65; Sheridan v. Sheridan, 136 Pa. 14; Jones v. Caldwell, 97 Pa. 42.
    When the real estate of a minor is sold under the provisions of the Act of April 18, 1853, P. L. 503, 3 Pepper and Lewis’s Digest, (2nd Ed.,) Col. 6413 to 6429, followed by his death while yet in his minority the fund resulting from the sale retains the characteristic of realty and so descend to his heirs. Holmes’ App., 53 Pa. 339.

      Harvey A. Miller, for appellee,

    cited Darlington v. Darlington, 160 Pa. 65; Ramsey v. Ramsey, 226 Pa. 249; Battenfeld v. Kline, 228 Pa. 91.
    February 5, 1912:
   Opinion by

Mr. Justice Mestrezat,

Mrs. Annie S. Murray died August 12, 1904, seised of certain real estate situate in the City of Pittsburgh. By her will she devised one-third of the residue of her estate to her son, Anthony S. Murray and her son-in-law, Edward A. Jackson, as trustees in trust to pay the income “to my son Anthony S. Murray for and during the term of his natural life and from and immediately after his death I give said residue of said share absolutely to such child or children as he may have living at the time of his death and the descendant or descendants of any deceased child or children then living,” with the proviso that if her son, Anthony g. Murray, left no child or descendant living at the time of his death, then to go to her two daughters absolutely. The testatrix made like general provisions as to the two remaining shares of the residue, for her two daughters and their descendants. She did not direct her real estate to be sold, and gave no express authority to her trustee to sell, but in the fifth paragraph of her will provided as follows: “I give to my said trustees and the survivor of them, the power to make from time to time, such investments or changes in the investments of the estates and moneys herein given to them in trust as may become necessary or they or the survivor of them may deem advisable.”

Anthony g. Murray, the trustee and life tenant of the undivided one-third of the estate, died on July 11, 1907, leaving to survive him a son, William N. Murray, by his first wife, and Anthony g. Murray, Jr. and James R. Murray, sons by his second wife, both minors, residents of the city of Baltimore, Maryland, residing with their mother, Eva Murray, his second wife. James D. Murray, Esq., of Pittsburgh, Pennsylvania was appointed guardian of the minors.

After notice to all parties in interest and to a trustee appointed to represent all contingent interests in posse, the surviving trustee was authorized by the orphans’ court to sell the real estate therein described. The proceedings were taken under and in strict compliance with the Act of April 18, 1858, known as the Price Act, and the necessary jurisdictional averments were set forth in the petition, as was also the specific intent to bar contingent and vested remainders and ex-ecutory devises. The proceeds of sale were distributed by the orphans’ court which decreed to the guardian of Anthony S. Murray, Jr., one-ninth thereof which is included in the account of the Guardian and now being distributed in this proceeding.

Anthony S. Murray, Jr., minor, died on May 27, 1910, intestate, unmarried and without issue, leaving to survive him his mother, Eva Murray, his brother of the full blood, James R. Murray, and his brother of the half blood, William N. Murray.

As stated by the learned Judge of the orphans’ court, if the fund now is of the nature of realty, the half brother, William N. Murray is excluded from the distribution; if personalty, under the laws of Maryland, the domicile of the minor, he shares in his half brother’s estate; if personalty, distributable under the laws of Pennsylvania, the distributee is his mother.

The learned judge of the orphans’ court filed an adjudication holding that the fund in the hands of the guardian must be distributed as realty. He said, inter alia: “It was the trust estate as a whole with all its limitations, including possible interests of persons unborn, that was before the court for sale; a divestiture of the interest and title of all parties interested, whether in being or in expectancy, could be, and was brought about only by the proceedings under the Act of 1853. * * * * * The proceeding being under the Act of 1853, the provisions of the sixth and seventh sections fix the character of the fund, viz., the purchase money shall in all respects be substituted for the land sold, shall be held and applied as the estate sold had been held, the course of descent shall not be changed by reason of such sale, as respects persons who are not of competent ability to dispose of it. * * * The death of Anthony S. Murray, Sr., vested an absolute estate in a portion of the third of the residue, devised under the will of Annie S. Murray, in Anthony S. Murray, Jr. As land of this minor it was sold under an act positively fixing the character of the proceeds; so it continued, and passed as such, Eckert’s Estate, 5 W. N. C. 451, on his death during his minority to those under the intestate law entitled thereto, Tor the purpose of preserving the inheritable quality of the estate:’ Wentz’s Appeal, 126 Pa. 541.”

To this adjudication, W. N. Murray, brother of the half blood of the decedent, filed exceptions, alleging that the court erred in finding that Mrs. Murray had left no directions and gave no authority in express terms to her trustees for the sale of the real estate; and further that the real estate having been sold before the death of Anthony S. Murray, Jr., the court should have held that the- fund was personalty and distributed it as such. In the opinion sustaining the exceptions, the learned court says: “It is now contended that by the terms of Mrs. Murray’s' will and the sales made for the purpose of carrying out its provisions, conversion has in fact taken place.” He sustained the exceptions on the ground that the Price Act under which the sales were made could not prevail against the will of the testatrix, if, by the terms thereof, or the exercise of the power contained therein conversion had actually taken place.

It will be observed that the proceeds of the sale of real estate in the hands of the guardian and now being distributed were raised by a sale made by the trustee under the Price Act and, as stated by the learned orphans’ court judge, for the purpose of barring contingent and vested remainders and executory devises liable to open and let in after-born children so as to give the purchaser an indefeasible title. By the express provisions of that act the purchase money is substituted for the land sold, and is to be held and applied as real estate.

Aside from the fifth paragraph, did the will of Mrs. Murray work an equitable conversion of her residuary estate? As said by Chief Justice Sterrett in Darlington v. Darlington, 160 Pa. 65, 70: “To work a conversion of real estate into personalty, there must be either (a) a positive direction to sell; or (b) an absolute necessity to sell in order to execute the will; or (c) such a blending of realty and personalty by the testator, in his will, as to clearly show that he intended to create a fund out of both real and personal estate, and to bequeath the same as money.” It is clear that there is no positive direction to sell contained in Mrs. Murray’s will. It is equally certain, we think, that there is no absolute necessity to sell in order to execute the instrument. After the direction to pay her debts and funeral expenses and making certain specific bequests, she “gives and disposes” of her residuary estate in three equal parts or shares. She gives one of these shares to trustees in trust to receive and collect the income and pay the same to her son, Anthony S. Murray, during his natural life, and from and immediately thereafter she gives the share absolutely to his children. This is the share now being distributed. The other two shares were given to trustees for her two daughters and their descendants with provisions similar to the gift to her son, Anthony. There is nothing in these provisions of the will that requires a sale in order to carry out the intention of the testator in the distribution of the residue of her estate. If, for instance, it was all real estate, the parties would hold it together and either party could institute partition proceedings, as we have frequently held. If the property was personalty, they could divide it, or, if they desired, sell it as a whole. If, as is a fact, the property was partly real and partly personal estate the same disposition could be made of it by the parties. There was therefore no necessity to sell in order to execute the will.

There is nothing to support the contention that there was such a blending of the realty and personalty as to clearly Show that the testatrix intended to create a fund out of both real and personal estate and to bequeath the same as money. There is not a single provision in the will which indicates an intention on the part of the testatrix to convert her real and personal property into money and to divide it among the distributees as such. The property is given in the form in which it was at the time the will was executed. “All the rest and residue of my estate, real, personal and mixed, I direct to be divided into three equal parts or shares,” is the language of the will. These “parts or shares” are separately given to trustees for the respective parties. There was certainly no intention on the part of the testatrix, as disclosed by this language, to dispose of the residue of her estate as money. On the contrary, it is an absolute disposition of the property in its existing form, and was to be taken and held as such by the beneficiaries. “The blending of real and personal estate by a testator in his will,” says the Court in Perot’s Appeal, 102 Pa. 235, 256, “is not of much significance unless it clearly appears that he intended thereby to create a fund raised out of both real and personal estate, and to bequeath said fund as money.” Here the testatrix directed that the residue of her property, not the proceeds or money arising from the sale thereof, should be divided into three equal parts, and that the several parts be held by the trustees for the respective beneficiaries. Each of these three shares vested in the trustees for the respective beneficiaries thereof, and not the entire residue as a blended fund of realty and personalty to be held by the trustees as one fund. The testatrix did not devise her residuary estate to the trustees as a whole, but one-third thereof to the trustees of each of the beneficiaries to whom each of the three parts were given.

The power contained in the fifth paragraph of the will did not work an equitable conversion of the real estate. That is too plain, we think, for argument. The authority there confei’red was simply for the purpose of administering the three trust estates. The trustees were given authority “to make from time to time such investments or changes in the investments of the estate and moneys herein given to them in trust as may become necessary or they or the survivor of them may deem advisable.” There is not even an intimation in this language that the trustees were empowered to sell the real estate as a whole or the three interests therein separately for the purpose of distribution. The language clearly indicates that the purpose was to enable the trustees to deal with the trust estates in the most advantageous way for the cestui que trusts. None of the sales were made before the death of Anthony S. Murray, the life tenant. None of the sales were made by the trustees by virtue of the authority conferred in the fifth paragraph of the will. The sales were made by a trustee appointed by the orphans’ court, and, as we have seen, under the provisions of the Price Act. His authority came from the orphans’ court and not from the will. These facts are clearly disclosed by the petitions presented to the court and by the court’s decrees confirming the sales. They also appear by the account which the trustee filed. In discussing the Price Act and the effect of the sale of a minor’s real estate under it, this Court said in Holmes’ Appeal, 53 Pa. 339, 342: “The sale was not made for the purpose of raising money for him, (the minor). Before making the order, the Court was satisfied that the change from land to money substituted for the land, would be best for his interest, and it was that which moved the Court to make the order. We must therefore hold that this change did not change the character in which the substitute is to pass to those entitled. It must pass as land.”

Ramsey v. Ramsey, 226 Pa. 249, does not rule this case. The facts of that case clearly disclose an intention to convert the property and distribute it as money. The court said: “He (testator) blends the real estate with the personal and divides the total into shares. In express terms he makes the price of the home farm a part of that total, and directs that the price is to be deducted from the share of the party to whom it is given.”

We are of opinion that the proceeds of sale of the realty retain their character as real estate, and should be awarded as such.

The decree is reversed and distribution is directed to be made in accordance with the views set forth in this opinion.


author: Mr. Justice Stewart,

text:
    Canfield v. Barnes, Appellant.

      Wills — Issue devisavit vel non — Undue influence — Evidence • — Insufficient evidence to sustain verdict.

    A verdict against a will in an issue devisavit vel non where undue influence is alleged, will be set aside, where the evidence shows that the testator, a man sixty three years old when he died, made his will in favor of his second wife more than a year before his death and six years after his second marriage; that the will was executed in testator’s own privacy, and remained in his exclusive control to within a few days of his death; that testa1or was a man of unusual intelligence and superior judgment; that although he drank liquor as a habit, he was not under its influence when his will was made nor had it weakened his will power; that he lived happily with his second wife who had con•fributed to his comfort and happiness; that the wife had not attempted to influence her husband against his children by his-first wife; and that evidence of a meretricious relation between the testator and the second wife during his first wife’s lifetime was admitted, and given an undue weight by the trial judge in his charge to the jury.
    Argued Oct. 23, 1911.
    Appeal, No. 163, Oct. T., 1911, by defendants from judgment of O. P. No. 4, Allegheny Co., First Term, 1911, No. 86, on verdict for plaintiffs in case of Laura E. Canfield et al. v. Emma J. Barnes et al.
    Before Fell, C. J., Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Issue devisavit vel non to determine the validity of the will of Elmore A. Barnes who died on January 17, 1909, a resident of the city of Pittsburgh. Before Carnahan, J.
    The contestants claimed that the will was the result of undue influence exercised upon the testator by his second wife, Emma J. Barnes.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiffs. Defendants appealed.

      Error assigned, amongst others, was in refusing binding instructions for defendants.

      John C. Bane, for appellants.
    — The evidence was insufficient to submit to the jury: Roberts v. Clemens, 202 Pa. 198; Caughey v. Bridenbaugh, 208 Pa. 414; Brink v. Brady, 224 Pa. 116; Cauffman v. Long, 82 Pa. 72; Englert v. Englert, 198 Pa. 326; McNitt’s Est. 229 Pa. 71; Slater v. Slater, 209 Pa. 194; Tyson’s Estate, 223 Pa. 596; Chidester’s Estate, 227 Pa. 560; Lewis’s Est. 210 Pa. 599; Allshouse v. Kelly, 219 Pa. 652; Snyder v. Erwin, 229 Pa. 644; Levis’ Est., 140 Pa. 179; South Side Trust Co. v. McGrew, 219 Pa. 606; Logan’s Est., 195 Pa. 282; Grubbs v. McDonald, 91 Pa. 236.

      R. T. M. McCready, with him J. M. Stoner, for appellees,
    cited: Lewis’ Est., 210 Pa. 599; Miller’s Est., 179 Pa. 645.
    February 5, 1912:
   Opinion by

Mr. Justice Stewart,

This was an issue devisavit vel non, in which the ground of contest was alleged undue influence. The only possible explanation of the verdict condemning the.will in question, is to be found in the great mass of irrelevant testimony that the jury were called upon to consider, the effect of which must have been, if not to divert their minds from the one issue they were trying, to at least influence them in resolving it by considerations improperly introduced into the case. For we do not hesitate to say, after a careful review of every one of the eleven hundred pages of testimony, that there is absolutely nothing in this record upon which this verdict can be justified. The issue was granted at the instance of the testator’s children by a first wife who are aggrieved at the disposition made by testator of his estate. The testator was sixty three years of age when he died. This will in question was made more than a year before his death; the codicil attached, some four months before. The will had been prepared by counsel from memoranda submitted by the testator, and was afterwards executed by the testator in his business office, and attested by his own chosen witnesses; the codicil, by which certain changes were made in the will, affecting only one of the appellees, was prepared by the clerk of the counsel who had written the will, and was executed in like manner as the will. Outward constraint in the preparation and execution of the will or codicil there, was none, and none is pretended. Both were executed in the freedom of testator’s own privacy, and both remained in his exclusive control and custody to within a few days of his death. The testamentary capacity of this man, acting free from control, is admitted; but even without the admission, it is made apparent by the testimony that he was a person of unusual intelligence and superior business judgment. The learned, trial judge in his charge has this to say of him: “I think we all agree that at one time in the life of Mr. Barnes, if not at all times, he was a bright, intelligent, strong, vigorous man mentally and physically.” The qualification here made is in view of one of the contentions on the part of the plaintiffs, that is, that through excessive drink in his later years the testator’s will had become enfeebled, and his power of resisting importunity correspondingly lessened. This inquiry was pursued at great length, unnecessary ground being covered because the main purpose of the inquiry was lost from sight. The question whether he was a man of intemperate habits was given undue prominence. It not being alleged that at the time of the execution of the will he was under the influence of drink, the testimony with respect to his habit of drink was admissible only as it went to show, as a result of the alleged habit, that he had so far deteriorated in mental force that it was in the power of designing persons to make him adopt their will as his own. Many witnesses were called who testified to having seen him at different times under the influence of liquor. Some testified to prolonged spells of intoxication; some to a constant habit of drink; none, however, that -the habit, however constant and long continued, had disqualified him from attending to his business affairs, giving them careful consideration and exercising in connection therewith his usual intelligent judgment. More than this, not one of them testified to a single circumstance which could be made the basis of even a conjecture that •his power of self-assertion, which admittedly all his life long had been a prominent characteristic, had in the slightest degree abated. Not a single act of yielding to attempted persuasion of others, of subordinating his views to those of others, or of imprudence in the management of his estate was shown. Out of this mass of testimony on this branch of the case, nothing making for the contention of the plaintiffs can be derived except the academic statement of a physician, who at one time had attended testator in a brief illness, to the effect that a victim of chronic alcoholism has, generally speaking, “less will power, generally a lack of responsibility, sense of responsibility, is more or less lost or carried away by alcohol.” A fuller reference to this feature of the case is unnecessary in view of what we have to say with respect to the main question at issue— the alleged undue influence.

The proponent of the will was the widow to whom testator had given in her own right by far the greater part of his estate. The inequality created by the will is apparent, the discrimination being against these plaintiffs, children of testator’s first wife, and the only children testator left surviving. The inequality extends as well to the shares given the children, some are given more than others. It is the contention of the plaintiffs that the will in question was procured by undue influence exercised upon testator’s mind by the proponent and her sister, who resided in testator’s family and to whom he had given a legacy of $1,000. The intervention of no other party is even suggested, so we have to consider the conduct of these two alone. First, let us observe what affirmatively appears in the evidence. The testator, in what may justly be regarded as unseemly haste following upon the death of his first wife, married the proponent. This, together with the fact that proponent occupied a humbler station in life, having previously been an employee in the laundry owned and operated by the testator, gave offense to the plaintiffs, and resulted in estrangement between them and their father, which continued more or less marked until testator’s death, except in the case of one of the daughters, Mrs. McCardell. None of the children resided with their father at the time of this second marriage, each having a home of his or her own. That this second marriage, apart from the estrangement of his children, contributed to the comfort and happiness in a marked degree of the testator abundantly appears, not only by his own frequent declarations to this effect, but by his attachment to his re-established home and his domestic life therein. That he entertained for this wife a most affectionate regard cannot be questioned. Neither can it be questioned that she made Mm a kind and considerate wife. During the seven years that this marital relation continued, the peace of it was never disturbed. All the evidence on the subject indicates that the parties were living in mutual confidence and affection, which continued to the end. So much for what affirmatively appears. If now we turn to the evidence introduced by the plaintiffs for the purpose of showing undue influence exerted by the defendants, not only does the utter barrenness of it become apparent, but the conclusion becomes irresistible that the condemnation of this will by the jury was the product of prejudice aroused by wholly irrelevant testimony affecting the character of the proponent, not during the continuance of the marital relation with the testator but preceding it. Before further reference to this evidence, let us say that not a single act of interference of either defendant in connection with the making of the will was shown. Not only was no importunity or entreaty to prefer the widow shown, but it does not appear that even a request on part of either of defendants that testator should make a will was ever made. Further still, the will was made a year before testator’s death, and it does not appear that proponent knew of its existence, certainly not of its contents, until shortly before testator’s death. Whether she knew it then was a matter in dispute. The record will be searched in vain for any evidence which would warrant an inference that proponent had ever attempted to prejudice testator against his children that is at all credible. A declaration alleged to have been made at a family dinner at the home of Mrs. McCardell by Miss Younkin, one of the defendants, in presence of all the guests, including the testator, to the effect that testator’s children ought not to receive any part of his estate, and assented to by the proponent, is the nearest approach to direct evidence on this point. Apart from the fact that it was denied by both defendants that any such conversation occurred, it passes belief that if defendants were actually conniving to influence the testator to make a will discriminating against his children that they were openly avowing their sentiments in the presence of those to be prejudiced thereby, and particularly when it is manifest that such conduct could in no conceivable way further their designs. Conceding that the conversation occurred as related by the witness, it is, if not the only evidence, certainly the nearest approach to substantial evidence on which the theory of undue influence arises. How ineffectual it was, if intended to influence the testator’s mind, appears from the testimony of this same witness who says that her father told her as many as fifty times after his marriage to the proponent, and repeated it as late as August, 1908, that he would do with his estate as he pleased, and that no one should know the contents of his will until it was opened. Not a single remark reflecting upon any of these children in a way calculated to prejudice them in the estimation of the testator, notwithstanding their refusal to recognize her as their father’s wife, is traced to the proponent. With this exhibit of the evidence, the inquiry is natural — upon what was the case made to turn in the court below? As we read the charge the jury were called upon to consider and pass upon three questions of fact. One of these we have already considered, the extent to which testator was addicted to drink, about which there was much conflicting testimony, but which, upon the plaintiff’s own showing, was wholly inadequate for the purpose for which it was offered. The next was whether the proponent had knowledge of the existence of the will and its contents before testator’s dea,th, a question of no consequence whatever in connection with the main issue except as associated with other evidence from which undue influence could be derived. In itself, such fact could establish nothing here in issue, but nevertheless it was made one of the vital issues in the case, the jury being told that “it went to the root of the question itself.” The instructions in regard to this unrelated matter covers more than five pages of the judge’s charge. The proponent had testified that the first knowledge she had of the existence of a will was derived about two weeks before she and her husband left their home to go to the sanitorium where the latter died. This was in December, 1908. She testified that testator then told her that he had made a will, and that it was safe in the house. She further testified that she did not see the will until her return home after testator’s death. Evidence was introduced to show acts and statements made by the proponent inconsistent with her testimony with respect to these matters. One witness testified that during testator’s last illness proponent on her return from a visit to her home, upon entering her husband’s sick room, produced a paper from a business envelope, threw it on testator’s bed and said to him, “I brought your will,” and the testator replied, “Put it in the trunk;” that later when one of the daughters came to visit testator, proponent took the will from the trunk and remarked that nobody should see it. Another witness testified that a day or so following testator’s death, in reply to a question, proponent said that she did not know whether there was a will or not. All of this testimony was flatly contradicted by proponent. Had ground here been laid for any inference of undue influence on the part of the proponent, the relevancy of this inquiry could be well understood; but without evidence in the remotest degree involving the proponent, it is impossible to see how. the determination of the question of proponent’s truthfulness with respect to the matter inquired of could in any way affect the issue being tried. And yet the view taken by the court is thus expressed in his instructions to the jury: “But if you find that she is not stating the .truth as to her knowledge of the contents of the will, that is a much more serious matter, and one that ought .to influence you in rendering your verdict.”

The remaining question to which the jury’s attention was directed was one not only without relevancy, but one well calculated to divert the minds of the jury from the true and only issue. Our only reason for referring to it — and the same consideration has governed in the discussion of the other questions, — is that some explanation may appear for what we are compelled to regard as an unwarranted verdict. We have referred to the unseemly haste with which the testator, following the death of his first wife, hastened into married relations with the proponent. Had the evidence touching the relations of the parties stopped with this one circumstance, while its pertinency is not apparent, its admission might still have been justified, but it went far beyond, and because it exceeded all reasonable limits, it should not have been admitted. The purpose of the added evidence was to show that before his marriage with the proponent, and during the lifetime of his first wife, and during the lifetime of proponent’s first husband, the testator had maintained meretricious relations with the proponent. We shall not attempt a review or recital of the evidence which was relied on to establish this contention. It is sufficient to remark that it was wholly circumstantial, and against it the proponent could do nothing but enter her sworn denial. Whether the charge be true or false, what had it to do with the issue being tried? Seven years before his death the testator had married this woman; during all that time he not only acknowledged her as his wife, but gave unmistakable evidence of his confidence in her faithfulness and his affectionate regard for her, while she in turn, so far as the evidence shows, merited by her conduct his kindest consideration. To permit an inquiry into what occurred between these parties, at a period antedating the marriage into which both voluntarily and deliberately entered, and which, so long as it continued, was marked by mutual regard and affection, under pretext of showing that one exercised undue influence over the other in the making of a will seven years thereafter, is to disregard the plainest rules of evidence, and allow widest opportunity for prejudice to overcome judgment and reason in the determination of such issues. If the facts were as alleged by the plaintiffs, the moral guilt incurred brought its own condemnation upon the parties with its own appropriate penalty; and violated law, had it been appealed to, stood ready to pronounce its condemnation with its appropriate penalty; but neither in morals nor law can warrant be found for penalizing such misdoing by denying to the parties years after they have entered into lawful marital relations the right to say who shall succeed upon their death to the assets they leave behind. Such right is denied to those lacking mental capacity, and those deprived of freedom of action, but disregard of moral standards at a time seven years removed from the testamentary act, is no test of either condition. In referring to this evidence the court in its charge said: “It is contended on part of plaintiffs, who were children of Mrs. Barnes the first wife, that the relations of Mr. Barnes and the defendant were, prior to the death of the first Mrs. Barnes, illicit and meretricious. This is denied by Mrs. Barnes. Whether the allegation be a fact or not, it does not determine this case. It is an element to be considered in the case with all the other evidence in the case,” etc. It is impossible to escape the conclusion that in the submission of this question to the jury is to be found the true explanation of the verdict condemning the will. But our decision of the case rests, not on the views here expressed with respect to the manner of its submission, but on the broader ground that there was nothing in the case calling for submission, and that binding instructions for the defendants should have been given. “A court has a higher duty to perform than merely to answer points of law! It is its duty to see that the law is faithfully administered. Such administration requires that a man’s will, the most solemn instrument he can execute, shall not be set aside without any sufficient evidence to impeach it. There is no redress here for an erroneous or improper verdict. But where a case is submitted to a jury, upon clearly insufficient evidence, such as no court ought to sustain a verdict upon, it is our plain duty to reverse.” This was said by this court in Cauffman v. Long, 82 Pa. 72. It is quite as appropriate here. The first assignment of error is the refusal of the court to so instruct in accordance with defendant’s first point. This assignment is sustained; the judgment is reversed, and the issue directed to be set aside; costs to be paid by appellees.


author: Mr. Justice Potter,

text:
    Forno v. Pennsylvania Railroad Co., Appellant.

      Negligence — Railroads—“Stop, look and listen” — Contributory negligence.

    In an action against a railroad company to recover damages for personal injuries sustained by the plaintiff while crossing defendant’s tracks, a verdict and judgment for plaintiff will be sustained where the evidence shows that the plaintiff on a dark night approached the railroad at a point where there were three tracks with an engine on the far track making a noise; that he stopped, looked and listened before going on the first track; that his wife preceded him safely over this track; that the plaintiff carrying a child was struck as soon as he stepped upon it by the tender of an engine which was moving backward without light or signal; that at the point in question there was a permissive crossing; and that about three hundred and forty feet away was a public crossing as to the availability of which the evidence was conflicting.
    Argued Oct. 24, 1911.
    Appeals, Nos. 72 and 73, Oct. T., 1911, by defendants from judgments of O. P. Washington Co., Feb. T., 1910, Nos. 131 and 132, on verdicts for plaintiffs in case of Mary Forno, a minor, by Charles Forno her next friend and Charles Forno, father of Mary Forno, in Ms own right v. Pennsylvania Railroad Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before McIlvainb, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for Charles Forno for $5,000, and for Mary Forno for $4,000. Defendant appealed.

      Errors assigned were (1) portions of the charge referred to in the opinion of the Supreme Court and (2) in refusing binding instructions for defendant.

      R. W. Irwin, with him Jas. A. Wiley, for appellant.
    The mere fact that people have been permitted to walk across the company’s tracks or even walk along the tracks, without a protest from the company, is not sufficient to establish a permissive crossing: Phila. & Reading R. R. Co. v. Troutman, 11 W. N. C. 453; Taylor v. Del. & Hudson Canal Co., 113 Pa. 162; Shackleford v. R. R. Co., 84 Ky. 43; Le Duc v. R. R. Co., 87 N. Y. Supp. 364; Young v. R. R. Co., 156 Mass. 178 (30 N. E. Repr. 560); Wright v. R. R. Co., 142 Mass. 296 (7 N. E. Repr. 866); Phila. & Reading R. R. Co. v. Hummell, 44 Pa. 375; Galena & Chicago Union R. R. Co. v. Jacobs, 20 Ill. 478; St. Louis S. W. Ry. Co. v. Shiflet, 83 S. W. Repr. 677; Bailey v. R. R. Co., 220 Pa. 516.

      Carl E. Gibson, with Mm Chas. G. McIlvain and W. K. Vance, for appellee,
    cited as to the permissive crossing, Com. v. Burford, 225 Pa. 93; Wissler v. Hershey, 23 Pa. 333; Gunson v. Healey, 100 Pa. 42.
    Cited as to defendant’s negligence: Eply v. R. R. Co., 3 Pa. Super. Ct. 509; Taylor v. Canal Co., 113 Pa. 162; Phila. & Trenton R. R. Co. v. Hagan, 47 Pa. 244; Philadelphia B. & W. R. R. Co. v. Layer, 112 Pa. 414; Reeves v. R. R. Co., 30 Pa. 454.

      Cited as to contributory negligence: Fisher v. Ry. Co., 131 Pa. 292; Kuntz v. R. R. Co., 206 Pa. 162; Doud v. R. R. Co., 203 Pa. 227; Beach v. Penna. R. R. Co., 212 Pa. 567; Ely v. Pittsburgh, etc. Ry. Co. 158 Pa. 223; Bond v. R. R. Co., 218 Pa. 34; Woodruff v. R. R. Co., 231 Pa. 640.
    February 5, 1912:
   Opinion by

Mr. Justice Potter,

In this action, Charles Forno sought to recover damages for personal injuries sustained by him through the alleged negligence of the defendant company. The plaintiff at the same time, as father and next friend, brought another action in behalf of his infant daughter, Mary Forno, against this defendant, to recover damages for personal injuries sustained by her through the same alleged negligence. The cases were tried together, and appeals from the judgments have been argued together, and are to be disposed of in this opinion.

It appears from the evidence, that the defendant railroad company has at Shire Oaks, Washington County, two main tracks and a siding running along the western side of the Monongahela River. At the point in question there is a strip of ground, some sixty or seventy feet in width, between the railroad tracks and the river, upon which in July, 1909, was erected a dwelling house qwned by the defendant and occupied by one Dominic Censore. On the opposite side of the railroad and running. parallel with it, is a public highway. From this road at a point about 340 feet north of the Censore house, another public road extends eastwardly at right angles, crossing the railroad tracks and running to the river bank. There was considerable evidence tending to show that a safe pathway extended along the eastern side of the tracks from the house to the public crossing. There was also evidence upon the part of the plaintiff tending to show that, this means of access to the public crossing was not available.

On the evening of July 17, 1909, the plaintiff, Charles Forno, with his wife and two children, was at the Censore house. At about half past nine o’clock they left for their home which was on the opposite side of the railroad. The night was dark and plaintiff carried a pit lamp which was lighted. The party started to walk directly across the railroad tracks. The husband and wife both testify that before stepping upon the first track they stopped and looked and listened, but neither saw nor heard an approaching train or locomotive. There was a coal train standing upon the third track, and its engine was making a noise. The wife was in advance and the husband with a child in his arms followed, and as he stepped upon the track he was immediately struck by the tender of a passing locomotive which was at the time running backwards at a speed of about sis miles an hour. The engine was brought to a stop very quickly, within a distance of about forty feet, and the plaintiff was found between the rails, and under the engine. He lost an arm as a result of the accident, and was otherwise injured, and the child was so injured that it was necessary to amputate the right foot and the left leg at the thigh.

The specific act of negligence with which the defendant company was charged, was in running the engine and tender backward at the time and place in question, without giving an alarm or signal, and without having a light on the end of the tender. At the trial requests for binding instructions in favor of the defendant were refused, and the cases were submitted to the jury, who found a verdict in favor of the plaintiff in each case. The defendant has appealed and in the first assignment of error its counsel complain of a portion of the charge which in effect, it is urged, permitted the jury to say whether or not the plaintiff was justified in crossing the tracks directly in front of the house, even though they found from the evidence that there was a plain, safe path leading along the tracks from the house to the public crossing. We have considered with great care the portion of the charge assigned for error, but we are unable to see that the inference suggested by counsel for appellant is fairly to be drawn from the language of the court. It is apparent that the learned trial judge had a proper understanding of the law, and that he submitted his conceptions to the jury with care and exactness. The respective contentions of both parties as to the facts, were impartially presented. The jury were told that as a general rule, one hurt on a railroad track, other than at a public crossing, cannot recover damages for injuries sustained from a train properly operated in the ordinary way. That an exception to this rule arises where persons are led to cross the tracks through a necessity brought about by the railroad, or where they do so with its express or implied permission. In the language of the court below the law upon this point was thus summed up: “The general rule, as we have told you, is that the railroad company has the right to the exclusive use of its tracks, but the case is altered when by permission of the company persons cross its track at a given point not a public crossing. In such cases the comfort and safety.of those permitted to cross the track of the railroad are involved, and those employes of the railroad who operate its trains must exercise care under the circumstances as they exist in such 'a case.” This was followed by stating in substance the claim of plaintiff that the renting of the house by the defendant company gave rise to a right in the tenant to cross the tracks at that point as a way of necessity; but this statement of plaintff’s claim was balanced by the immediate presentation of defendant’s reply to that contention, in which it said in substance that there was no such necessity in this case because a convenient and safe pathway existed leading along the side of the railroad from the house to the public crossing, which plaintiff might easily have taken. In like manner the attention of the jury was directed to the evidence of the crossing of the tracks at the point in question, and they were told that they must find whether such use of the crossing had continued long enough to fairly justify an inference that it was permitted by the railroad.’ The court said in this connection: “It will be for you to say, taking all the evidence that has been produced here on both sides, whether or not in front of this house there was a permissive crossing, either a permissive crossing by reason of the necessity that was put upon the tenants of that house by the railroad company itself when they rented it, or by their use for the length of time they had been in there, to such an extent as to notify the railroad company that they were using that crossing there, so that it could be fairly inferred that they consented to their using it, or whether there was a path led up to it, and away from it.” Further on the jury were instructed that if they did not find from the evidence that the railroad had granted a permissive crossing, the plaintiff would be a trespasser at that point, and if he was a trespasser, the railroad company owed him no duty. Doubtless it would have been better if in connection with the reference to defendant’s contention that a safe path extended along the railroad from the house to the crossing, the jury had been told directly and positively that if they found from the evidence there was such a path, the failure of plaintiff to use it, and the taking merely for his own convenience of a shorter way across the tracks, was contributory negligence which in itself would prevent a recovery. But the affirmance of the fifth point for charge presented by counsel for appellant did give squarely just such an instruction, and under the circumstances, and considering the whole scope and contents of the charge, we do not feel that the court below can fairly be charged with reversible error in the manner in which it presented to the jury the matter which is made the subject of the first assignment of error.

After full consideration of the evidence bearing upon the contributory negligence of the plaintiff, we have concluded that this question was, under the peculiar circumstances of the case, properly left to the determination of the jury. According to plaintiff’s own testimony, a single step from the side of the track placed him directly in front of the tender of the locomotive which ran over him. Under ordinary circumstances it is vain for a man to say that he looked or listened who walks directly in front of a moving locomotive. An injury so received is due to his own gross carelessness: Penna. Railroad v. Bell, 122 Pa. 58. If this accident had occurred just as it did, in daylight, the court must have, as a matter of law, pronounced the plaintiff guilty of contributory negligence. But the evidence showed that the night was dark, and that an engine standing nearby was blowing off steam and making a noise. There was evidence upon the part of plaintiff which if believed by the jury, tended to show that the engine which struck plaintiff came along quietly, running backward without a light upon the tender to indicate its approach. This evidence brings the case within the lines of the decision in Davidson v. Railway Co., 171 Pa. 522, where the cases in which the existence of contributory negligence has been held to be a question of law, are distinguished from those in which it has been held to be a question of fact. The same case was before this court again in 179 Pa. 227, and it was there said: “We are not disposed to relax the rule that requires a traveler when approaching a railroad crossing to stop, look and listen; nor to depart from the long roll of cases in which we have held that one who goes in front of a moving train which he has ample opportunity to see, and hear, and avoid, must ordinarily be held guilty of contributory negligence as matter of law; but when the facts are not clear and simple, and where the existence of contributory negligence depends upon inferences to be drawn from the evidence, the question must go to the jury for decision.” Another case illustrating the application of this principle, is Muscarro v. Railroad Co., 192 Pa. 8.

In the present case we find no substantial error in the planner in which, the rather complicated questions involved were submitted to the jury. The assignments of error are overruled, and the judgments at No. 72 October Term, 1911, and at No. 73 October Term, 1911, are affirmed.


text:
    Geiger v. Pittsburgh Railways Co., Appellant.

      Negligence — Street railways — Passenger—Contributory negligence — Assault by motorman — Erroneous charge.

      1. Where a driver of a beer wagon gets into an altercation with the crew of an open summer ear, and while attempting to get on the ear for the alleged purpose of going to the car-barn to complain, which purpose was denied by the company, he is killed by another ear colliding with him, it is reversible error for the court to give no instructions whatever as to what was necessary to constitute the deceased an actual or intending passenger, and to ignore the question of contributory negligence, and to permit the jury to infer that the case turned only on whether the deceased was or was not a passenger, or intending passenger at the time.
    2. If the deceased was killed while forcing his way into the car from the wrong side, and at an unusual and improper place, he could not have been regarded as a passenger, and the jury should have been so instructed; if he was attempting to get upon the car by climbing over the guard rail from the wrong side, just before he collided with the other car, the mere fact that he had succeeded in getting his feet upon the running board, and even upon the body of the ear, would not be sufficient to constitute him a passenger.
    3. In such a ease it was also error on the part of the trial judge to leave it to the jury to say whether or not the deceased’s injury resulted from his being struck by the motorman, without giving to the jury any instructions as to the scope of the motorman’s employment.
    Argued Oct. 25, 1911.
    Appeal, No. 52, Oct. T., 1911,
    by defendant from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1908, No. 222, on verdict for plaintiff in case of Mary Geiger, survivor of Adam Geiger, dec’d. and Mary Geiger v. Pittsburgh Railways Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Trespass to recover damages for death of plaintiff’s son. Before Davis, J.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    The defendant presented the following points:
    Third: A person attempting to board a car by climbing over the guard rail on the blind side of an open car, is not a passenger, and the mere fact that he gets into the body of the car in safety does not make him a passenger.
    Answer: Refused. (2)
    Fourth: The deceased, Michael Geiger, in attempting to board an open summer car on the blind side, placed himself in a dangerous position, and was guilty of contributory negligence; therefore, the plaintiff in this case is not entitled to recover.
    Answer: This point is affirmed, if you find that this accident arose from the facts that this point will cover, namely: That this man placed himself in a dangerous position, where he ought not to have placed himself, and where he took the risk; and if he lost his life there, that then he was guilty of contributory negligence and she could not recover in this case. (3)
    The court charged in part as follows:
    [“And if you arrive at the conclusion, from the weight of the evidence, that this Michael Geiger was a passenger or an intending passenger, and did not go to that front platform for the purpose of renewing this altercation, then there could be a recovery in this case. And then you come to the question of damages.”] (4)
    Verdict and judgment for plaintiff for $2,898. Defendant appealed.

      Errors assigned among others were (2-4) above instructions quoting them.

      William A. Challener, with him Clarence Burleigh, for appellant.
    — Geiger was not a passenger: Penna. R. R. Co. v. Price, 96 Pa. 256; Bricker v. R. R. Co., 132 Pa. 1; Blair v. Rapid Transit Co., 36 Pa. Superior Ct. 319.
    The burden of proving the scope of the motorman’s duty was upon the plaintiff, and there being a total lack of evidence upon that point, the plaintiff has failed to make out a case: Rudgeair v. Reading Trac. Co., 180 Pa. 333.

      Rody P. Marshall, with him Thos. M. Marshall, for appellee.
    — A person may be a passenger, although he violates a rule of the company in boarding the car: Penna. R. R. Co. v. Books, 57 Pa. 339; Smith v. Ry. Co., 18 N. Y. Supp. 759; Penna. R. R. Co. v. Vandiver, 42 Pa. 365; Tilburg v. Ry. Co., 217 Pa. 618; Barre v. Ry. Co., 155 Pa. 170; Pittsburgh & Connellsville R. R. Co. v. Pillow, 76 Pa. 510.
    The company was liable for the motorman’s misconduct: Artherholt v. Motor Co., 27 Pa. Super. Ct. 141; Rudgeair v. Traction Co., 180 Pa. 333; McFarlan v. R. R. Co., 199 Pa. 408.
    As a matter of law it makes no difference whether a passenger or trespasser, it is the duty of the defendant company not to put a person off in a dangerous place or to use more force than is necessary in ejecting either a passenger or a trespasser: Biddle v. Ry. Co., 112 Pa. 551; Penna. Co. v. Toomey, 91 Pa. 256; Penna. R. R. Co. v. Lewis, 79 Pa. 33; Enright v. R. R. Co., 198 Pa. 166; Amold v. Penna. R. R. Co., 115 Pa. 135; Sharrer v. Paxson, 171 Pa. 26.
    February 5, 1912:
   Opinion by

Mr. Justice Potter,

This was an action of trespass brought by Adam Geiger and Mary Geiger, Ms wife, against the defendant company, to recover damages for the death of their son, Michael Geiger. The latter was the driver of a beer wagon. On the evening of September 6, 1909, he stopped his wagon and two horse team in front of a saloon on the corner of 27th and Carson streets, Pittsburgh. Geiger went into the saloon leaving the team standing between the curb and the street railway track. An open summer car came along, and, owing to the narrow space between the track and the curb, was unable to pass. Geiger was called out of the saloon and instead of promptly starting his team and clearing the way for the car, he engaged in an altercation with the men in charge of the car. He attempted to board the car, as appellant claims, for the purpose of assaulting the motorman ; but counsel for appellee maintain that it was for the purpose of riding to the car barn, in order to make complaint against the motorman and conductor. Geiger was prevented from getting on the car at the side nearest the curb by the motorman of another car which had also been stopped, and he went around in front of the car, falling over the fender as he passed, and tried to board the car from the inner side. He got up on the running board and put one leg over the chain or bar that prevented access to the front platform on that side. The evidence indicates that while in this position he was struck by a car coming from the opposite direction on the other track, and so injured that he died in a short time. It was contended on the part of plaintiff that he motorman either struck or struck at Geiger while he was attempting to get upon the platform.

The trial judge refused binding instructions for the defendant, and submitted the case to the jury who found a verdict for the plaintiff. The defendant has appealed, and in the fourth assignment of error, counsel have alleged the inadequacy of the charge, in that the jury were instructed that if they found the decedent was a passenger or an intending passenger, and did not go to the front of the platform for the purpose of renewing the altercation, there could be a recovery in this case. This instruction to the jury gave no intimation whatever as to what was necessary under the circumstances, to constitute Geiger an actual or intending passenger. It was also inadequate in that it ignored the question of contributory negligence, and permitted the jury to infer that the case might turn entirely on the question of whether Geiger was or was not a passenger or intending passenger at that time. This error is repeated and emphasized near the conclusion of the charge, where the court says: “So that, as the court has said to you, the first question for you to determine in this case is whether this Michael Geiger was ever a passenger upon that car or an intending passenger. If he was not, then there can be no recovery in this case.”

It is very difficult, under the evidence in this case, to reconcile the verdict of the jury in favor of the plaintiff, with any proper understanding by the jury of what was required to constitute a passenger. If Geiger was hurt while forcing his way into the car from the wrong side, and at an unusual and improper place, he should not have been properly regarded as a passenger at the time, and the jury should have been plainly so instructed. If Geiger was attempting to get upon the car, by climbing over the guard rail from the wrong side, just before he collided with the other car, the mere fact that he had succeeded in getting his feet upon the running board, or even upon the body of the car, would not be sufficient to constitute him a passenger.

The learned trial judge also left it to the jury to say whether or not Geiger’s injury resulted from his being struck by the motorman. It does not appear, however, that the jury was given any instructions as to the scope of the motorman’s employment. If his alleged action in striking at Geiger was not within the line of his employment, or if it was in self defense, in attempting to protect himself from the unprovoked assault of Geiger, the defendant company should not have been held responsible. The circumstances of the accident were most unusual. As disclosed by the evidence, the conduct of Geiger in attempting to mount the car at the time and place and in the manner in which he did, was apparently without any valid reason or excuse. The case called for unusually complete and careful directions to the jury in order to insure a just verdict. We feel that the charge did not adequately cover the essential questions involved.

The fourth assignment of error is sustained, and the judgment is reversed with a venire facias de novo.


text:
    Dunshee v. Dunshee, Appellant.

      Will — Conversion—Devise—Charge on real estate.

    1. A provision by a testator that “my executors may sell my real estate and make deeds to the purchasers, or divide the whole or what remains after this, between my heirs,” does not convert real estate into personalty, nor create any absolute necessity for the executors to sell in order to carry out the provisions of the will; nor does it take away the right of any devisee to partition. If the testator directs that the indebtedness of one of his sons shall be charged against such son’s share, such direction may be carried out through the process of partition by charging the indebtedness on the share as owelty.
    2. Where a testator directs the “balance of my estate to be divided into seven shares one of which shall go to each of my children,” and further directs -that “my executors may sell my real estate and make deeds to the purchaser or divide the whole or what remains after this, between my heirs,” he discloses no intention to blend his real and personal estate so as to create a fund to be bequeathed entirely as money.
    3. Where a testator devises his real estate to his children, and charges the indebtedness of one of his sons on such son’s share, and partition proceedings are instituted to divide the real estate, it is the duty of the court before decreeing partition to ascertain the amount of the son’s indebtedness which is to be charged upon the son’s share. If this is not done, and an appeal is taken from the decree awarding partition, the appellate court will not attempt to ascertain and adjudicate such indebtedness, although all the parties join in requesting that such action should be taken. In such a case the decree of partition will be affirmed and the record remitted to the lower court in order that snch court may determine and fix the amount of the indebtedness, and embody the result in the decree for partition.
    Argued Nov. 1, 1911.
    Appeal, No. 179, Oct. T., 1911, by defendants from decree of C. P. No. 4, Allegheny Co., Second Term, 1910, No. 390, awarding partition in case of Johnston F. Dunshee, et al. v. Margaret L. Dunshee, et al.
    Before Fell, C. J., Brown, Potter, Elkin, Stewart and Moschzisker, JJ.
    Decree modified.
    Bill in equity for partition. Before Swearingen, P. J.
    The facts are stated in the opinion of the Supreme Court.
    The material portion of testator’s will was as follows:
    1. I give my entire estate to my wife during her life.
    2. At her death I give to my son M. P., the sum of five thousand dollars, to my daughters, Margaret L. and Edith each ten thousand dollars, and the balance of my estate to be divided into seven shares, one of which shall go to each of my children.
    In distributing my estate any indebtedness from any of my children to me, shall be first deducted from their shares, and in this, any debt due by me on account of endorsements for Duquesne Tube Works shall be charged against my son Wm. A., because those endorsements were at his instance. In case either my said son Wm. A. or my son Johnston F. shall die before me the shares which they would otherwise be entitled to shall remain in the estate and go to my remaining children.
    3. My Executors shall sell my real estate and make deeds to the purchasers or divide the whole or what remains after this between my heirs.

      The provisions of the codicil are stated in the opinion of the Supreme Court.

      Error assigned was the decree of the court.

      Geo. L. Roberts, for appellant.
    — Under the will the court had no jurisdiction to decree partition: Keim’s Estate, 201 Pa. 609; Rauch’s Est., 21 Pa. Super. Ct. 60; Lamberton’s Estate, 40 Pa. Super. Ct. 548; Severens’s Estate, 211 Pa. 65; Reifsnyder’s Estate, 214 Pa. 637; Fahnestock v. Fahnestock, 152 Pa. 56; Fredericks v. Kerr, 219 Pa. 365.

      John G. Frazer, with him Reed, Smith, Shaw & Beal, for appellees.
    — The court had jurisdiction: Yerkes v. Yerkes, 200 Pa. 419; Painter v. Painter, 220 Pa. 82; Hunt’s App., 105 Pa. 128; Cooper’s Est., 206 Pa. 628; Chew v. Nicklin, 45 Pa. 84; Caldwell v. Snyder, 178 Pa. 420; Rawle’s App., 119 Pa. 100; Sheridan v. Sheridan, 136 Pa. 14; Lindley’s App., 102 Pa. 235; Sauerbier’s Est., 202 Pa. 187.
    February 5, 1912:
   Opinion by

Mr. Justice Potter,

The bill in this case prayed for partition of the real estate of William Dunshee who died on March 5, 1905, having by his will given his entire estate to his wife for life, and directed that after the payment of certin pecuniary legacies, the balance of his estate should be divided among his children. He also directed that in distributing his estate, any indebtedness from any of his children to him should be deducted from their shares, and that any debt due by him on account of endorsements for Duquesne Tube Works, should be charged against his son William A. Dunshee. He further provided, “My executors may sell my real estate and make deeds to the purchasers or divide the whole or what remains after this between my heirs.” By a codicil the testator fixed the amount of the indebtedness of William A. Dunshee to him at $38,716.59, and directed that this amount with interest should be charged against him, and that he should not participate in the estate unless that amount be paid by him, or his share of the estate should exceed that sum. Whatever might be realized out of the sale of 196 shares of the stock of the Monongahela Natural Gas Company, or if not sold, its value, was to be allowed as a credit. In a second codicil to his will, testator repeated the instruction as to any indebtedness of his children, and especially of William A. Dunshee, and recited that he had sold the Monongahela Natural Gas Stock for $13,900, and directed that credit should be given to William A. for that amount.

An answer to this bill was filed by William A. Dunshee, in which he denied that the court had jurisdiction to entertain the bill, on the ground that the real estate of testator had by the terms of his will been converted into personalty for purposes of distribution. He also denied the averments of the bill, as to the amount of his indebtedness to the estate. The court below held that there was no conversion, and that the questions raised by the answer as to the amount of respondent’s indebtedness to his father, could only be determined upon final distribution, and directed that a decree for partition be drawn. Exceptions were filed on behalf of William A. Dunshee to the findings of fact and conclusions of law, these exceptions were overruled, and a decree was entered awarding partition, and appointing a master to make such partition. From that decree this appeal was taken.

Admittedly, there is no positive direction to sell. The will says: “My executors may sell my real estate.” A direction to the executor to make division of the estate does not take away the right to demand partition: See Carter’s Estate, 225 Pa. 355, and the cases there cited. Nor does it appear here that there is any absolute necessity for the executors to sell in order to carry out the provisions of the will. The bill shows, and the answer admits, that the executors have filed their final account of the personal estate, that the debts and legacies have been paid, and that a balance is left for distribution among the residuary legatees. It is also admitted that none of the legatees, except appellant, are indebted to the estate of testator. If the provisions of the will as to charging the indebtedness of appellant against his share of the estate, can be carried out through the process of partition, there will be no need for a sale by the executors. That this may be done appears to be settled by our decisions. In Allegheny National Bank’s Appeal, 99 Pa. 148, there was a provision in the will similar to that in the present case. The testator directed “that in the payment of the distributive share of my daughter Ann Eliza, $1,000 shall be deducted for the lot already conveyed to her, and also any amount of money that I may pay, on account of endorsement or otherwise, or that my executors may have to pay after my decease.” At the time of his death the testator was an endorser upon a note of the legatee’s husband, for $1,000. In partition by bill in equity, this sum was charged upon the purpart of the legatee as owelty in partition. Mr. Justice Mercur said (p. 151) that the decree was “in an unusual form, and rather irregular”; but added, “It does, however, appear on the facts found by the auditor, that the decree was equitable between all the parties. * * * Full effect must then be given to the claim of the appellants as one of the owelty.” In the case of Armstrong v. Walker, 150 Pa. 585, it was held that indebtedness to the estate by executors who were also devisees, which arose out of waste of the personal estate, might be charged in a suit in equity for partition, against their shares of the real estate, and where the liability exceeded the value of such shares, they would take nothing under the partition decree. In Trickett on Partition in Pennsylvania, 366, it is said, “When partition in equity of land of a decedent is sought, account will be taken of advancements made to one or more of the heirs or devisees, as when the partition is in the orphans’ court. * * * If the land or a purpart is allotted to the devisee or heir advanced, the sum advanced may be included in the owelty with which it is charged.” It seems clear, therefore, that the indebtedness of appellant, whatever it may prove to be, may be charged in the same manner as the owelty against the purpart allotted to him. The Act of July 7, 1885, P. L. 257, section 2, provides expressly for charging owelty against purparts allotted by the final decree. In this case, we do not see in the will anything to indicate that the testator intended that his real and personal estate should be so blended as to create a fund to be bequeathed entirely as money. Rather does it appear that the real and personal property were to be dealt with separately. Discretionary power to sell was given to the executors, but, subject to its exercise, testator apparently intended the real estate to be divided as such. The direction that the whole of the real estate or what remains after possible sales by the executors, shall be divided among his heirs, seems to be opposed to the idea of the real estate being blended with the personalty, and the total divided into shares.

We agree with the conclusion of the court below, that there was no conversion, and that the complainants were entitled to partition. As to the indebtedness of appellant, to the estate of his father, two questions are raised; (1) That the testator, his father, through inadvertence failed to give appellent credit for the sum of $10,786.76 to which he was entitled, as shown by his father’s own account; and (2) that appellant is entitled to credit for more than was allowed him by his father, as the proceeds of the sale of the Gas Company Stock, as directed in the second codicil of the will. The court below did not pass upon these questions, but held that if it could determine them at all, it could only do so upon the final distribution, and further, that these matters could not affect the rights of the other devisees to have their shares of the land set apart to them in severalty. In Lincoln v. Africa, 228 Pa. 546, this court indicated the proper practice to be pursued in partition proceedings. Mr. Justice Moschzisker said (p. 548): “In partition proceedings in equity, if the case is not sent to a referee under rule 69, the equity rules require that the court, and not a master, shall find all the relevant facts concerning the properties involved and the interests of the various parties, and that an adjudication shall be filed in the usual form containing these findings and the conclusions of law thereon, with a decree for partition: Palethorp v. Palethorp, supra. The proper procedure is shown in Palethorp v. Palethorp, 194 Pa. 408. Since the adoption of the new rules, the master merely executed the decree of the court after the rights of the parties have been judicially determined; before a master may be appointed to make partition the court must ascertain the interests and titles of the parties, and enter a decree that partition be made. The decree of partition must rest upon the findings and conclusions of the court; after such an adjudication and only thereafter, the case may be sent to a master: Equity Rule 60: Act of July 7, 1885, P. L. 257, sec. 2.” Under the method of procedure thus pointed out, the court below should have ascertained the interests and titles of the parties, and should have fixed the amount of appellant’s indebtedness to the estate, before entering the decree for partition. We note that the appellees join with the appellant, in requesting that the questions relating to appellant’s indebtedness be decided by this court, on the present appeal. But if we were to attempt to decide these questions without any previous consideration of them by the court below, we would “assume the duties of the court of first instance”: Jones v. Weir, 213 Pa. 135. Mr. Justice Sterrett said, in Shaw v. Allegheny, 115 Pa. 46 (p. 52), “According to the theory of our system of jurisprudence, the parties litigant, as well as the appellate court, are entitled, in every case, to a full consideration and deliberate judgment of the court below.” In the present case the court below should proceed to determine and fix the amount of the indebtedness to be charged against the interest of William A. Dunshee, under the will of William Dunshee, deceased, and embody the result of its findings in its decree for partition.

To the extent made necessary by this requirement, the decree of the court below is modified, and the record is remitted with a procedendo.