author: Mr. Justice Mestrezat,

text:
    Fountain v. Bigham, Appellant.

      Criminal law — Compounding of felony — Act of March 81, 1860, P. L. 88% — Bond—Duress.
    1. In an action upon a bond where the defense is that the bond was signed by the surety to prevent her son-in-law from being prosecuted for forgery, the burden is upon the defendant to show that the plaintiff committed the offense of compounding a felony. In such a case the essential ingredients of the crime set up as a defense to the bond, are (1) that a forgery was committed, (2) that the obligee in the bond had knowledge of the actual commission of the offense at the time he took the bond, and (3) that in consideration of being given the bond to secure its indebtedness he agreed “to compound or conceal the crime.”
    2. Under the Act of March 31, 1860, P. 1. 382, it is “a knowledge of the actual commission of any forgery,” and not a knowledge of the party who committed the forgery, that is the essential element of the offense.
    3. Where compounding of felony is set up as a defense in an action on a bond, it is only necessary for the defendant to establish the commission of the offense by a preponderance of testimony. In such a case a threat to prosecute the principal in the bond is in itself evidence for the jury of the plaintiff’s knowledge that the principal had committed the forgery charged.

      Contracts — Duress—Invalidity of contract.

    4. A contract obtained by duress or acts of coercion or intimidation may be invalidated. Under such circumstances the party coerced is not exercising his free will, but executing the will of the party who subjects him to the coercion, and, therefore, the instrument bearing his signature is not the contract of the party against whom it is sought to be enforced. The test is not so much the means by which the party was compelled to execute the contract as it is the state of mind induced by the means employed,— the fear which made it impossible for him to exercise his own free will.
    5. The threat must be of such a nature and made under such circumstances as to constitute a reasonable and adequate cause to control the will of the threatened person, and must have that effect, and the act sought to be avoided must be performed by such person while in such condition.
    6. A threat of lawful imprisonment is not duress, unless it is made for an unlawful purpose, such for instance, as compelling the satisfaction of a debt by payment in money, or by the execution of an obligation to secure it.
    ?. The defense of duress is open only to the party upon whom it is imposed, and a third party who has become surety for the payment of the claim cannot avail himself of the plea unless he signed the obligation without knowledge of the duress; but there are certain exceptions to the rule, among which is the case of a mother-in-law becoming surety for a son-in-law, where the latter is living amicably with his wife, and the two families are on the usual terms of intimacy and friendship.
    8. In such a ease it is for the jury to determine whether the bond given by the mother-in-law was her voluntary act, or was executed under threats of prosecution of her son-in-law which deprived her of the exercise of her free will.
    9. If the threats were made, although not in her presence^ but with the intention that they should be communicated by others to her, for the purpose of coercing her in signing the bonds, it is competent to show the threats, that they were communicated to her, and what, if any, effect they had in inducing her to sign the bond.
    Argued March 23, 1911.
    Appeal, No. 61, Jan. T., 1911, by defendant from judgment of C. P. No. 5, Phila. Co., June T., 1906, No. 5361, on verdict for plaintiff in case of Nathaniel L. Fountain v. Margaret A. Bigham.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Eeversed.
    Assumpsit on a bond. Before Martin, P. J.
    The facts are stated in the opinion of the Supreme Court.
    At the trial, plaintiff was asked this question:
    “Q. Was it because you got the bond for security for your money that you did not prosecute him for forgery?”
    Objected to.
    Objection sustained.
    Exception. [1]
    “Q. In your negotiations with A. J. Dunn prior to the signing of this bond did you agree with him that if á bond were given as security for the payment of your money that you would drop the false pretense charge you then had against him and would not bring against him a charge of forgery which you then and there did?”
    Objected to.
    Objection sustained.
    Exception. [2]
    Defendant made this offer:
    “Mr. Owens: We will show that this conversation was communicated with Mrs. Bigham. I offer this testimony for the purpose of showing that these threats communicated to this witness were part of a system of threats and coercion brought to bear upon different members of the families of both defendants for the purpose of inducing the signing of this bond. These threats were all communicated to the parties who made the bond.
    “The Court: Were these communications made by the plaintiff?
    “Mr. Owens: Not direct but the parties to whom they were made communicated them directly.”
    Objected to.
    Objection sustained.
    Exception. [3]
    “Mr. Owens: I further offer to prove by this witness that the threats made against A. J. Dunn by Fountain were communicated to her and were the inducing cause of her signing this bond, and was the only consideration therefor.
    “Mr. Laws: I object for the reason.that it is incompetent, irrelevant and not evidence in this case.”
    Objection sustained.
    Exception. [4]
    The Court charged in part as follows:
    “Therefore if there was forgery committed by Dunn, and Mr. Fountain knew that forgery had been committed, and had evidence to prove it, but in consideration of this bond being given refrained from prosecuting Dunn for forgery, then the bond is void, and your verdict should be for defendant.

      “Does the evidence satisfy you that he was in possession of evidence to prove such a case? Put yourself in his position. He finds a check drawn to his order, endorsed with his name not written by him; underneath this is the name “A. J. Dunn” and the check bears evidence of having passed through Dunn’s bank account. In the Criminal Court, a defendant cannot be compelled to testify against himself, and if Dunn was called to the stand to explain how Fountain’s signature was placed on the back of' the check he could decline to incriminate himself. How could Fountain establish a case of forgery? His name appears on the check; he swore he did not sign it. Below is the name of Dunn who received the money. • If that should be held to establish a prima facie case sufficient to call upon Dunn to defend, if he denied that he signed the name of Fountain on the check that would probably end further inquiry from him, and if acquitted suit might follow claiming damages from Fountain for false arrest. It is not enough that it now, for the first time, has been learned by Fountain that Dunn caused some one to sign the name of Fountain, and that his conduct may have subjected him to a charge of forgery. If you are satisfied that the only crime of which Mr. Fountain was aware when the bond was executed was that of false pretense, he had a right to accept the bond and agree to the settlement of the case.”
    “Mr. Fountain seems to have left the matter in the hands of his lawyer, and testified that he was willing to do anything the law would allow him to do. Mr. Dunn swore that it was the distinct understanding that all the charges were to be withdrawn. Mr. Bley, who acted for Mr. Fountain, denied all knowledge of such a stipulation, and testified that all they undertook to do if the bond was signed, was when the case came up for trial to state in Court that Fountain had received the bond and endeavor if possible to have Dunn acquitted. Does the subsequent conduct of the parties support the evidence of Dunn, that the criminal proceedings were to be withdrawn? Dunn paid interest on this bond several times. The case was on the list for trial several times, at none of which does it appear that demand was made that it should be submitted; and finally it was tried and resulted in the acquittal of Dunn. You have heard the testimony relating to these defenses; that there were threats made to Mrs. Bigham calculated to operate upon the mind of a person of ordinary firmness and inspire her with great fear, and to avoid the disgrace she was induced to do that which she would not otherwise have done— sign the bond; that the bond was given as part of an agreement to suppress the crime of forgery; and that there was a failure of the consideration for the bond by reason of the fact that the criminal prosecution which had been commenced was not withdrawn, but allowed to proceed to trial.”
    Plaintiff presented these points:
    “1. There is no sufficient evidence in this case to set aside the judgment as to Margaret A. Bigham upon the ground that she was induced by threats, coercion or intimidation to sign the bond upon which the judgment was entered.”

      Answer: “So much of the point is affirmed. The balance is refused.” [18]

      “2. Margaret A. Bigham cannot set aside the judgment entered in this case upon the ground that Alphonsus J. Dunn was induced to sign the bond by threats, coercion or intimidation, because under the evidence she had knowledge of the alleged threats, coercion or intimidation before she signed the bond.”

      Answer: “That I affirm.” [19]
    Verdict and judgment for plaintiff for $2,500. Defendant appealed.

      Errors assigned amongst others were (1, 4) rulings on evidence quoting the bill of exceptions; (16, 18, 19) above instructions quoting them.

      Bernard F. Owens, Avith him Joseph Levy, for appellant.
    The courts have uniformly held that all bonds, contracts and agreements, the consideration of Avhieh is the stifling of a charge of forgery, are void and unenforceable in laAv: National Bank v. Kirk, 90 Pa. 49; Bredin’s Appeal, 92 Pa. 241; Riddle v. Hall, 99 Pa. 116; Filson v. Himes, 5 Pa. 452; Pearce v. Wilson, 111 Pa. 14; Swope v. Ins. Co., 93 Pa. 251; Conderman v. Trenchard, 40 Howard Prac. (N. Y.) 71.
    Fountain used a criminal prosecution to enforce payment of a civil debt: Fillman v. Ryon, 168 Pa. 484; Portner v. Kirschner, 169 Pa. 472; Baker v. Morton, 79 U. S. 150.
    The bond Avas executed under the influence of threats and coercion.

      F. S. Latos of Lewis, Adler & Laws, for appellee.
    The evidence as to threats Avas not admissible: Greenfield’s Estate, 14 Pa. 489; East Stroudsburg Nat. Bank v. Seiple, 29 Pa. C. C. R. 245; Griffith v. Sitgreaves, 90 Pa. 161; Zebley v. Storey, 117 Pa. 478.
    February 19, 1912:
   Opinion by

Mr. Justice Mestrezat,

Nathaniel L. Fountain, the plaintiff, and A. J. Dunn, a real estate broker, Avere jointly interested in real estate speculations in Philadelphia in 1903 and in 1904. To raise funds to carry on a proposed joint enterprise, Fountain, at the request of Dunn, executed a mortgage on his real estate, dated December 9, 1904, Avith the name of the mortgagee presumably in blank, and left it with Dunn with instructions not to place it without notice to Fountain. In violation of these instructions, Dunn, without Fountain’s , knowledge or consent, placed the mortgage and received a check for the proceeds, amounting to $1,164.75, drawn to Fountain’s order. The check was endorsed with Fountain’s name, without his knowledge or consent. Immediately beneath the endorsement of his name, Dunn wrote his own name and deposited the check and received credit for the amount in his bank account. Fountain did not know that the mortgage had been placed until notice in the foreclosure proceedings was posted on his property. Dunn does not deny that he still owes Fountain the proceeds of the check.

About May 1, 1906, Dunn was arrested on two in-formations made by Fountain charging him with obtaining money under false pretenses. Dunn was held by the magistrate for trial and subsequently the grand jury found true bills. In 1909 the cases were tried and the defendant was acquitted.

Dunn, being indebted to Fountain in various sums, including the amount of the check, gave the latter, on September 10, 1906, a bond with warrant of attorney to confess judgment, with Mrs. Mary A. Bigham, his mother-in-law, as surety conditioned for the payment of $2,500 in one day after date. Judgment was entered on the bond on the next day. After two instalments of interest had been paid on the judgment and default as to the third instalment, execution was issued. Mrs. Bigham presented her petition to the court below and, for the reasons therein set forth, obtained a rule to stay the writ, open the judgment and let her into a defense. The rule was made absolute. The case was tried on the plea of non assumpsit, and having resulted in a verdict and judgment for the plaintiff, Mrs. Bigham took this appeal. Dunn did not appeal.

Mrs. Bigham alleges that the bond is invalid and not enforceable against her for the following reasons: (a) it was given in consideration of compounding a forgery, (b) the consideration failed because part thereof was the discontinuance of the prosecutions for false pretenses which were tried, (c) the prosecutions were instituted solely for the collection of a debt, (d) the bond was executed under the influence of threats and coercion, (e) and part of the consideration was an agreement to settle the prosecutions for false pretenses without leave of the court.

The appellant has filed nineteen assignments of error, but as said by Mr. Justice Strong in Fulton v. Hood, 34 Pa. 365, 369, “many of them are but repetitions of others, clothed in a dress slightly different, but having the same body.”

If the consideration of the bond given by Dunn and Mrs. Bigham was the compounding of a forgery, it will be conceded, we think, that there can be no recovery against either of the obligors. The tenth section of the Act of March 31, 1860, P. L. 382, 1 Purd. 917, provides, inter alia, as follows: “If any person having a knowledge of the actual commission of any * * * forgery * * * shall take money, goods, chattels,' lands or other reward, or promise thereof, to compound or conceal, or upon agreement to compound or conceal, the crimes aforesaid, every person so offending shall be guilty of a misdemeanor.” The burden of showing the commission of the offense is, in the present case, on the defendant who sets it up to defeat liability on the bond. The essential ingredients of the crime, it will be observed, are: that a forgery was committed, that the obligee in the bond had knowledge of the actual commission of the offense at the time he took the bond, and that in consideration of being given the bond to secure his indebtedness, he agreed “to compound or conceal the crime.” The forgery alleged, it will be recalled, was endorsing Fountain’s name on the check made payable to him for the proceeds of the mortgage which he had executed and left with Dunn to be negotiated. The forgery was clearly proved by Fountain’s own testimony and, hence, must be regarded as conclusively established. It is likewise settled, if the evidence is credible, that Fountain knew of the forgery prior to the execution and delivery of the bond. He denies, however, that he knew that Dunn had committed the crime. But the act of assembly, as will be observed, only requires that the party compounding the forgery shall know that the offense has been actually committed, and that the obligation was taken to stifle a prosecution of the guilty party whoever he may be. The gist of the offense is the agreement not to prosecute the crime, known by the injured party to have been committed, in consideration of. his receiving the obligation. If, for instance, several persons had been suspected, and Fountain had agreed not to prosecute the real culprit, he would have been guilty of the statutory offense. It is “a knowledge of the actual commission of any forgery,” and not a knowledge of the party who committed the forgery, that is an essential element of the offense. This distinction is most important and clearly supported by the language and the manifest purpose of the statute. If, however, it be conceded that the burden was upon the defendant to show that the party accepting the bond knew that Dunn committed the forgery, we think the burden was met by the introduction of evidence by the defendant which, if believed, warranted a finding that Fountain knew that Dunn was the guilty party. Certainly no higher degree of proof of the party who committed the forgery should be required than the degree of proof of the forgery itself where it is denied, and we have held that it is only necessary to establish the commission of the offense by a preponderance of testimony. In Swope v. Jefferson Fire Insurance Co., 93 Pa. 251, where guilt of the felony was in issue we said (p. 254): “The guilt of the party accused and an agreement not to prosecute are essential ingredients in the compounding of a felony. Though the proof of guilt need not be of that conclusive character that would be necessary to convict, there should be at least such preponderance of evidence as will justify the jury in finding that a felony was committed.” In this case, the uncontradicted tes timony shows that Fountain knew before he demanded the bond the following facts: Fountain and Dunn were jointly interested in the real estate speculations; the former left with Dunn the mortgage to be negotiated when the money was needed in their business; without Fountain’s knowledge, Dunn negotiated the mortgage and received a check for the proceeds made payable to Fountain’s order; the check bore Fountain’s forged endorsement and Dunn’s immediately subsequent endorsement which was genuine, and was deposited in the bank to Dunn’s credit. These facts were known to Fountain at the time he made the alleged threat that if a bond were not given as security for the payment of the proceeds of the check he would prosecute Dunn for forgery. The threat to prosecute Dunn was in itself evidence to be submitted to the jury of Fountain’s knowledge that Dunn had committed the forgery. The court should therefore have instructed the jury that the defendant was only required to show that Dunn committed the forgery by such preponderance of evidence as would warrant the jury in finding the fact.

Swope v. Jefferson Fire Insurance Co., 93 Pa. 251, does not, as contended, sustain the plaintiff’s position. What was decided in the case, was, as correctly appears by the syllabus, that to avoid a contract made to compound a felony, “it must be shown that there was an agreement not to prosecute, and it must appear by a preponderance of evidence that a crime was actually committed.” In the case at bar, it is conceded by all parties that a forgery was committed and, hence, must be taken as established. In the Swope case, that was ail issue and this court held that the commission of the ■offense had not been proven, saying (p. 254) : “If all the allegations of fact embodied in the offers had been proved, they were not sufficient to justify the jury in finding that Albert was guilty of the crime laid to his charge.”

The other or third ingredient of the crime which the defendant must prove is that the party taking the obligation agreed not to prosecute the person guilty of the offense. Each party introduced evidence which would have warranted the jury in sustaining his contention on this feature of the case. It' was a fact to be determined, under proper instructions, by the jury from the evidence submitted.

It follows from what has been said that we must sustain the sixteenth assignment of error.

The defendant further contends that there was a failure of consideration for the bond because as part of the consideration therefor the plaintiff agreed to withdraw the prosecutions for false pretenses then pending against Dunn which he failed to do, and the prosecutions went to trial. The plaintiff denied that he had made any such agreement and the court submitted the question to the jury with the result that the finding was against the defendant. This finding also concludes the defendant as to her contention that there was an agreement between Fountain and Dunn to settle the false pretense cases without leave of the court.

That a contract obtained by duress or acts of coercion or intimidation may be invalidated is well settled. Under such circumstances, the party coerced is not exercising his free will but executing the will of the party who subjects him to the coercion, and, therefore, the instrument bearing his signature is not the contract of the party against whom it is sought to be enforced. Such contracts are procured by duress and may be invalidated. The test of duress is not so much the means by which the party was compelled to execute the contract as it is the state of mind induced by the means employed, — the fear which made it impossible for him to exercise his own free will: Williamson-Halsell Frazier Co. v. Ackerman (Kan.) 20 L. R. A. (N. S.) 484. The threat must be of such a nature and made under such circumstances as to constitute a reasonable and adequate cause to control the will of the threatened person and must have that effect, and the act sought to be avoided must be performed by such person while in such condition: Wolff v. Bluhm, (Wis.) 60 Am. St. Rep. 115. But where one has a just claim against another for money obtained by the commission of a crime, it is not unlawful for the creditor to threaten to prosecute if the claim is not paid, and a contract cannot be avoided which the debtor enters into to secure payment of the claim, unless the creditor attempts by such threat to accomplish an unlawful purpose. In other words, a threat of lawful imprisonment is not duress, unless it is made for an unlawful purpose, such for instance, as compelling the satisfaction of a debt by payment in money or by the execution of an obligation to secure it. If in connection with the threat it appears that the creditor declared he would prosecute if the claim was not paid, with other evidence showing that his intention was to use the criminal process to collect the debt or to accomplish any unlawful purpose, a jury might well find that such was the purpose of the creditor in making the threat and that, therefore, it was duress. In delivering the opinion in Baker v. Morton, 79 U. S. 150, Clifford, J., says (p. 158) : “Where a party enters into a contract for fear of loss of life, or for fear of loss of limb, or fear of mayhem, or for fear of imprisonment, the contract is as clearly void as when it was procured by duress of imprisonment, which is where there is an arrest for an improper purpose without just cause, or where there is an arrest for a just cause but without lawful authority, or for a just cause but for an unlawful purpose, and the rule is that in either of those events the party arrested, if he was thereby induced to enter into a contract, may avoid it as one procured by duress.” This doctrine is reiterated in Richardson v. Duncan, 3 N. H. 508. It is, therefore, immaterial whether Fountain, when he made the alleged threat, knew or did not know that he had a criminal case against Dunn, as he could not lawfully compel the execution of the bond by threats to prosecute made for such a purpose.

In this case, however, Dunn is not contesting the validity of the bond, but the present appeal was taken by Mrs. Bigham, his mother-in-law, the surety on the bond. Can she avoid the obligation on the ground of duress exercised on Dunn? The general rule undoubtedly is that the defense of duress is open only to the party upon whom it is imposed, and that a third party who has become surety for the payment of the claim cannot avail himself of the plea unless he signed the obligation without knowledge of the duress. There are certain exceptions to the rule as well established as the rule itself. These exceptions include husband and wife and parent and child, and either may avoid his contract made to relieve the other from duress. The exceptions have been extended to grandmother and grandson: Bradley v. Irish, 42 Ill. App. 85; aunt and nephew: Sharon v. Gager, 46 Conn. 189; sister and brother: Schultz v. Catlin, 78 Wis. 611; father-in-law and son-in-law : Snyder v. Willey, 33 Mich. 483; Nebraska Mutual Bond Association v. Klee, 70 Neb. 383; brother and brother: Davis v. Luster, 64 Mo. 43. The reason for avoiding a contract on the ground of duress, as appears above, is that the condition of mind of the party upon whom the duress is imposed is such as to deprive him of the exercise of his free will. Whatever influence produces such a condition of mind will invalidate a contract executed while the influence prevails. The relations between parent and child and husband and wife are so close and tender that the law recognizes that threats to imprison one will have substantially the same effect on the mind of the other, and what will deprive the one of the free exercise of his will or judgment will have a like effect on the other. The reason of the rule will extend it to the case of a mother-in-law and son-in-law where the latter is living amicably with his wife, and the two families are on the usual terms of intimacy and friendship. In holding that duress to a child will relieve a parent from his obligation, Morton, J., in Harris v. Carmody, (Mass.) 41 Am. Rep. 188, said (p. 190) : “No more powerful and constraining force can be brought to bear upon a man, to overcome his will and extort from him an obligation, than threats of great injury to his child. Both upon reason and upon the weight of the authorities we are of opinion that a parent may avoid his obligation by duress to his child.” A mother’s affection for her daughter would under ordinary circumstances compel protection against grief and sorrow of the latter by affording relief to the son-in-law. The daughter’s happiness depends upon her husband’s happiness, and in protecting the one the mother assures the other. This is everyday experience and the law recognizes the fact. In Loud v. Hamilton, (Tenn.) 45 L. R. A. 400, the court says (p. 405) : “We are inclined to the opinion that where a son-in-law and his wife are living in harmony, and there is nothing to show any estrangement between the father-in-law and the son-in-law, the latter would stand in the same relation, so far as concerns the present question as would the daughter herself. It is without doubt true that the danger to the son-in-law, and the consequent grief and terror of the daughter, would act upon the father’s heart with substantially the same force as if the daughter herself were in danger, or, at least, nearly so.”

We think the learned court below should have submitted to the jury with proper instructions whether, owing to the relationship of the parties and the circumstances disclosed by the testimony, the bond was Mrs. Bigham’s voluntary act, or was executed under threats of prosecution of her son-in-law which deprived her of the exercise of her free will. The eighteenth and nineteenth assignments are sustained.

The testimony, the exclusion of which is the subject of the third and fourth assignments, should have been admitted. It tended to show, as disclosed by the offers, that the threats “were part of a-system of threats and coercion brought to bear upon different members of the families of both defendants for the purpose of inducing the signing of the bond” and “were communicated to her (Mrs. Bigham) and were the inducing cause of her signing this bond, and was the only consideration therefor.” If threats were made for the purpose stated, although not in her presence but with the intention that they should be communicated by others to Mrs. Bigham for the purpose of coercing her into signing the bond, it was competent to show the threats, that they were communicated to her, and what, if any, effect they had in inducing her to sign the bond: Ditto v. Slaughter (Ky.) 92 S. W. Repr. 2; Schultz v. Catlin, 78 Wis. 611; Snyder v. Wiley, 33 Mich. 483. Moyer v. Dodson, 212 Pa. 344, did not warrant the exclusion of the above offers of evidence. In that case, a scire facias on a mortgage, the defendant executed the mortgage after being examined separate and apart from her husband and the officer certified that she signed the instrument of her own free will, and it was conceded that the mortgagee made no threats to the defendant, did not authorize them to be communicated or knew that they would be communicated to her, was not present if they were made to her, and did not know when he accepted the mortgage that they had been communicated to her.

The question included in the first assignment was properly excluded. The plaintiff had the right to accept the bond to secure the indebtedness, but he could not accept it in consideration of stifling a prosecution for forgery. The question, the answer to which was excluded in the second assignment, was substantially the same as was subsequently asked and permitted to be answered. The question of estoppel is not in the case and the requests for instructions relative thereto were properly refused.

The judgment is reversed with a venire de novo.


source: Caselaw Access Project

author: Mr. Justice Brown,

license: Public Domain

text:
    Stoffal v. Jarvis.

      Partition — Husband and wife — Deed—Entireties.
    When land is held in common by a married woman and others, and they all join in a partition, and her share is conveyed to her and her husband, the law looks at the character of the transaction, rather than at the form of the conveyance, in order to define her interest, and considers the share as still hers, a divided share being substituted for an undivided one.
    Argued Oct. 27, 1911.
    Appeals, Nos. 180 and 84, Oct. T., 1911, by plaintiff and defendants, from judgment of C. P. No. 2, Allegheny Co'., Jan. T., 1907, No. 1012, on verdict for plaintiff in case of John Stoffal v. Washington Jarvis, et al., and the Whitehall Driving Association.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Ejectment for twenty-five acres of land in Baldwin Township. Before Frazer, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for two-thirds of the property in dispute. Both plaintiff and defendants appealed.

      Error assigned was in entering judgment on the verdict upon the question of law reserved.

      J. W. Kraus, with him R. 8. Martin, for John Stoffal.

      Frank W. Jarvis, for Washington Jarvis, et al.
    February 19, 1912:
   Opinion by

Mr. Justice Brown,

Though the facts in this case seem to be somewhat involved, there can readily be evolved from them an intelligent statement, from which it will clearly appear that the court below was right in entering judgment for the plaintiff for but two-thirds of the land in controversy. He claimed the whole of it, and the defendants two-thirds of it. Both have appealed from the judgment, but they respectively got just what belongs to them.

Samuel Cowan at the time of his death was the owner of a tract of land in Baldwin township, Allegheny County, containing eighty-four acres and one hundred and forty-six perches. He died intestate in 1819, leaving to survive him a widow and three daughters, Jane, Margaret and Harriet. Jane married John Stoffal; Margaret, Daniel B. Bennett, and Harriet, David Jarvis. Their mother released her dower interest in the estate of their fathei’, and the three daughters held the land as tenants in common until April 23, 1866, when Mrs. Stoffal conveyed her undivided third to Daniel B. Bennett and David Jarvis, as tenants in common. On May 7, of the same year Jarvis and his wife, for the nominal consideration of one dollar, executed a quitclaim deed to Bennett and his wife, for all their interest in fifty-one acres and seventeen perches of the land of which Cowan had died seized, and, on the same day, Bennett and his wife executed a similar deed to Jarvis and his wife for all their interest in the remaining thirty-three acres and one hundred and twenty-nine perches. The land in controversy is part of this tract. These two deeds were acknowledged on the same day, and both were recorded on October 29 following. The three daughters of Cowan died sometime prior to the institution of this suit. Mrs. Stoffal left to survive her four children; Mrs. Bennett, a husband and one daughter, and Mrs. Jarvis her husband, but no children. The plaintiff is a son of Mrs. Stoffal who, since the death of Ms mother and aunts, has acquired the interests of his brothers and sisters and the daughter of Mrs. Bennett in the property in dispute.

At the time of the interchange of the quit-claim deeds Jarvis and Bennett each owned in his own right an undivided sixth in the entire tract, having acquired the same from Mrs. Stoffal. The quit-claim deeds simply transferred the interest of each of the two daughters of Cowan from the whole farm and confined it to a portion of the same, that of Mrs. Jarvis being confined to the thirty-three acres and one hundred and twenty-nine perches, and that of Mrs. Bennett, to the fifty-one acres and seventeen perches. There was sufficient from the fact of the deeds to put a purchaser upon notice that 'they represented an amicable partition of the premises by the two daughters, and the court below correctly so held. The recital of title in each of them is that the interest conveyed had descended to the daughters of Samuel Cowan under the intestate laws, and the uncontradicted testimony of Bennett was that the deeds had been executed and interchanged for the purpose of making a division of the farm between his wife and Mrs. Jarvis. It is, therefore, quite clear that Jarvis and his wife and Bennett and his wife did not hold by entireties, as is contended by the defendants, but according to their actual respective interests in the land. What was said in Stehman v. Huber, 21 Pa. 260, fits the case: “When land is held in common by a married woman and others, and they all join in a partition, and her share is conveyed to her and her husband, the law looks at the character of the transaction, rather than at the form of the conveyance, in order to define her interest, and considers the share as still hers, a divided share being substituted for an undivided one.”

Upon the death of Jarvis there was notice on the record that the only interest he had in the real estate which is the subject of this controversy was an undivided third, composed of one-sixth which had been deeded to him by Mrs. Stoffal, and the one-sixth deeded to him by Mr. and Mrs. Bennett, and that his wife was seized of an undivided two-thirds, one-third having come to her directly from her father and the other one-third by the deed from Bennett and wife. This was the situation at the time the interest of Jarvis was sold under an order of the orphans’ court for the payment of his debts, and the purchaser acquired only his interest in the land. Upon his death his tenancy in the undivided two-thirds ceased, and the same not having been held by him and his wife by entireties, the right of possession thereto vested in the plaintiff.

Both appeals are dismissed and the judgment is affirmed.


author: Me. Justice Stewart,

text:
    Berstein, Appellant v. Philadelphia Electric Company.

      Negligence — Electric light companies — Live wire — Constructive notice — Evidence—Case for jury.

    In an action against an electric light company to recover damages for personal injuries sustained by the plaintiff from an electric shock while he was shoveling coal in his cellar, the case is for the jury on the question of defendant’s constructive notice, where there is evidence that an electric wire had broken and was hanging from the fuse bos with the broken end imbedded in a pile of coal from which the plaintiff was shoveling at the time he was injured; that the coal had been stored about a month before the accident and had been gradually lessened in quantity by use; that the wire emitted sparks through the coal, and was in a rusty condition, and that although electricity was not used in the house by the plaintiff, the disconnection had not been made outside the cellar which could have easily been done.
    Argued Jan. 3,1912.
    Appeal, No. 145, Jan. T., 1911, by plaintiff from order of C. P. No. 5, PMla. Co., June T., 1905, No. 693, refusing to take off non-suit in case of Louis Berstein v. Philadelphia Electric Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschziskbr, JJ.
    Reversed.

      Trespass to recover damages for personal injuries. Before Ralston, J.
    The facts are stated in the opinion of the Supreme Court.
    The court entered a compulsory non-suit which it subsequently refused to take off.

      Error assigned was refusal to take off non-suit.

      Thomas D. Finletter, with him Joseph W. Shannon, for appellant.
    The condition of the wire on the day of the accident showed it had been without insulation for considerable time. The defendant had wholly neglected its duty to inspect its wires. All of the cases require an inspection of the strictest sort, commensurate with the dreadful danger of the commodity in which such companies deal: Fitzgerald v. Edison Elec. Ill. Co., 200 Pa. 540; Daltry v. Media Elec. Light, Heat & Power Co., 208 Pa. 403; Morgan v. Electric Co., 213 Pa. 151; Smith v. East End Elec. Light Co., 198 Pa. 19; Aument v. Tel. Co., 28 Super. Ct. 610; Patterson Coal & Supply Co. v. Railways Company, 37 Pa. Super. Ct. 212.
    We distinctly proved in the case at bar that there had been no inspection for two years, that the parts of the wire which were bare of insulation were rusted: Daltry v. Media Electric Light, Heat & Power Company, 208 Pa. 403.
    But the defendant allowed the wires to remain connected with the feed wire in the street, and charged with electricity, for over two years after the use of electricity in the house had been discontinued: Southern Bell Tel. & Telg. Co. v. McTyer, 137 Ala. 601 (34 So. Repr. 1020); Daltry v. Media Elec. Light, Heat & Power Co., 200 Pa. 403.

      R. Stuart Smith, with him Charles E. Morgan, for appellee.
    There was no constructive notice: Turton v. Powelton Electric Co., 185 Pa. 406; Smith v. East End Electric Light Co., 198 Pa. 19; Fitzgerald v. Edison Electric Ill. Co., 200 Pa. 540.
    No matter how high the degree of care required of electric light companies, the burden of proving negligence is still upon the plaintiff; either express notice of a defect or facts equivalent to actual knowledge must be shown: Kepner v. Harrisburg Traction Co., 183 Pa. 24; Aument v. Telephone Co., 28 Pa. Super. Ct. 610; Morgan v. United Gas Improvement Co., 214 Pa. 109; Lanning v. Pittsburgh Railways Co., 229 Pa. 575.
    February 19, 1912:
   Opinion by

Me. Justice Stewart,

The house in which plaintiff received his injury was provided with the usual facilities for electric lighting. When the plaintiff succeeded to its occupancy, because he did not desire that kind of lighting the electric current was cut off by a disconnection in the fuse box on the inside cellar wall, about five feet from the floor. The wires were introduced into the house through the front cellar wall at a point- about four feet from the floor, and, as originally constructed, passed directly to the fuse box. So long as this continued, with wires properly insulated, there was absence of all danger, but, by some means or other, the actual cause being undisclosed, one of the wires leading into the cellar and thence to the fuse box, had been broken at a point about four inches from the inner wall, and so much of this wire, in length about three feet, was hanging from the fuse box with the broken end embedded in a pile of coal upon the cellar floor. At the time of the accident this pile of coal was some eighteen inches from the fuse box, and since the loose wire was three feet in length, it must have extended a considerable distance into the coal. The coal had been stored in that particular place a month before the accident, but was reduced in quantity by use. The night of the accident, plaintiff, while shovelling coal into a bucket for use above stairs, was injured by a shock in consequence of his shovel coming in contact with the broken wire. The negligence complained of was failure on part of the defendant company to properly protect its wires and maintain proper and safe insulation of the same. The court below directed a non-suit, which it after-wards refused to take off, on the ground that it not appearing in the evidence when the break in the wire occurred, the defendant could not be charged with notice of the defect, and that therefore there was no proof of negligence on its part. The learned trial judge in his opinion filed, clearly recognizes the duty resting on defendant of inspection and safe maintenance of wires placed as was this. Among other things he says: “If it had been shown that the wires were in this condition for an appreciable length of time, long enough to charge the company with constructive notice, then, it being their duty to inspect and to keep their wires in order, the jury might find that they had neglected their duty.” This was a correct statement of the law. So much of these wires within the house as led from the point of entrance in cellar wall to the fuse box, where the disconnection was made, was as much part of the defendant’s system as any other. It appears that it was quite as practical to make the disconnection outside the cellar as within. The company having elected to maintin live wires within the cellar, it was charged with the same duty of proper maintenance with respect to these as rested upon it with respect to wires outside. If regard be had exclusively to the testimony of the witness, plaintiff’s wife, who alone testified to the appearance of the broken wire the day after the accident, we would be inclined to the same view of the case as that taken by the learned trial judge. That testimony is not only lacking in precision of statement, but accepting it to mean all that appellant contends that it clearly implies, it furnishes no sufficient data from which anything better than a mere conjecture could be derived as to when the break in the wire occurred. The wire to her had a rusty appearance. This circumstance in itself certainly could not warrant the inference that it had broken because of its rusty condition, much less would it warrant an inference as to the time when the break occurred. This however was not all. The testimony of the witness is to be considered in connection with the circumstances shown. The coal pile had been in the cellar for a month, gradually diminishing in size of course as the coal was used. Reduced as it was, it was yet necessary in order to reach the end of the wire to shovel away the coal. Through the bed of the coal the wire was seen emitting sparks in a way that gave to the pile the appearance of burning coal. It would not be an unreasonable inference, in the absence of any other explanation, that the wire had been broken by what had happened in connection with the storing of the coal. How otherwise could the loose wire which did the damage have been so embedded in the coal? The coal had been stored, as we have said, a month before the accident. Certainly it was a circumstance tending to show that the break related back to that time, and with the testimony of the witness as to the rusty appearance of the wire, we think it was sufficient evidence to carry the cause to the jury on the question of constructive notice to the defendant.

The judgment is reversed and a venire de novo awarded.


author: Me. Justice Stewaet,

text:
    Bender, Appellant v. Penfield.

      Amendment — New cause of action — Statute of limitations — New parties — N egligence.

    1. A new cause of action cannot be introduced, nor new parties brought in, nor a new subject matter presented, nor a vital and material defect in the pleadings be corrected, after the statute of limitations has become a bar.
    2. Where an action for negligence has been brought against an executor of a decedent’s estate, an amendment will not be allowed after the cause of action has been barred by the statute, by making the person previously described as executor, defendant individually, as the sole devisee under the will of decedent. In such a case the fact that the party so introduced individually, happened to have been the legal representative of the estate originally complained against, is a matter of no consequence.
    Argued Jan. 4, 1912.
    Appeal No. 165, Jan. T., 1911, by plaintiffs from order of C. P. No. 2, Phila. Co., June T., 1907, No. 815, refusing to take off non-suit in case of Oscar Bender, by Ms next friend and father, Joseph Bender and Joseph Bender, Individually v. Anne W. Penfield, formerly Anne M. Weightman Walker, Sole Devisee under the last Will and Testament of William Weightman, deceased.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Wiltbank, J.
    The case turned upon the validity of an amendment, as appears by the opinion of the Supreme Court.

      Error assigned was refusal to take off non-suit.

      Bernard Harris, for appellants.

      Frank P. Prichard, with him James Wilson Bayard,
      for appellee.
    The amendment was improper: Dearie v. Martin, 78 Pa. 55; Garman v. Glass, 197 Pa. 101; Wildermuth v. Long, 196 Pa. 541; Comrey v. East Union Twp., 202 Pa. 442; La Bar v. N. Y. Susq. & West. R. R. Co., 218 Pa. 261; VanCott v. Prentice, 104 N. Y. 45 (10 N. E. Repr. 257); Erskine v. McIlrath, 62 N. W. Repr. 1130.
    February 19, 1912:
   Opinion by

Me. Justice Stewaet,

At the institution of this action process by summons went out against the estate of William Weightman, deceased. It was returned served, but upon whom does not appear. The circumstance is immaterial, since a general appearance for the estate followed. Two years after the action had been begun an amendment was allowed whereby the name of defendant was changed so as to read Anne W. Penfield, formerly Anne M. Weight-man Walker, surviving executor of the estate of William Weightman, deceased. Later on a rule was made absolute changing the name of defendant to Anne W. Penfield, formerly Anne M. Weightman Walker, sole devisee under the last Will and testament of William Weightman, deceased. To this last amendment exception was taken. The case was proceeded with, resulting in a judgment of non-suit for insufficiency of evidence, which the court refused to take off. From this later order we have this appeal. Were we to concede that plaintiffs’ evidence established a prima facie case of negligence, a reversal of the judgment on that point could avail the plaintiffs nothing, and we therefore make no inquiry into that feature of the case. The judgment entered is clearly right for jurisdictional reasons. The amendment by which this appellee was made a defendant in the action, was without authority of law. The action had been brought against the estate of a decedent; the amendment, bringing upon the record the appellee as the legal representative of the estate, was entirely proper; it introduced no new party, since in the event of recovery the judgment would simply be de bonis testatoris; but by the second amendment the appellee, against her protest, was introduced upon the record to defend not in her representative but in her individual capacity, and had judgment been obtained it would have been de bonis propriis. No truer test can be applied in determining whether a proposed amendment involves a change of parties to the action. If it may involve in personal liability one who was not made a party originally, the amendment, if objected to, should be disallowed, for no one may be held to answer except as required by due process. The negligence here charged was that of the estate of William Weightman; by the first amendment, acquiesced in, that estate was in court to answer through its legal representative, such' representative being in court in no other capacity; by the second amendment another and wholly different party, in substitution of the one originally proceeded against, was charged with liability for the alleged negligence, and that too, after right of action against such party had been lost by lapse of time. The fact that the party so introduced individually, happened in this case to have been the legal representative of the estate originally complained against, is a matter of no consequence. The rule admits of no exception based upon such accidental circumstance. Had the legal representative of the Weightman estate been some other than the appellee, it could not be for a moment contended that an amendment could properly be made bringing such party upon the record as a defendant. The principle of the rule applies in the one case as directly as in the other. As was said by this court in Garman v. Glass, 197 Pa. 101, in discussing the question of amendments under the statute, “Rights of action in “different capacities, even though in the same individual, cannot be mixed and interchanged in this way.” In the present case the right of action against the appellee was lost by expiry when this amendment was made, and a new action against the appellee would have been unavailing in face of the statute of limitations. The only purpose of the amendment was to involve the appellee in a liability from which the law had discharged her, by making her an original defendant in an action brought in time but against another party. This was without warrant in law. The appellee in her individual capacity was never for a moment in court in connection with this case before the amendment was made, and the court was therefore without jurisdiction as to her. “It has been many times decided that a new cause of action cannot be introduced, or new parties brought in, or a new subject-matter presented, or a vital and material defect in the pleadings be corrected after the statute of limitations has become a bar:” LeBar v. R. R. Co., 218 Pa. 261. In the case in which this appears the authorities in support are cited, and further reference to them is unnecessary. Sufficient cause for the non-suit appearing, the appeal is dismissed at the cost of appellant, and the judgment is affirmed.


author: Mr. Justice Moschzisker,

text:
    MacDermott, Appellant v. Philadelphia.

      Negligence — Municipalities—Obstruction of street.

    In an action by a boy thirteen years old against a city to recover damages for personal injuries, a non-suit is properly entered where it appears that the city had deposited on a street closed to traffic between the curb and a street railway track a large quantity of small stone in piles two and one-half or three feet high; that the plaintiff in attempting to cross the street diagonally climbed on one of the piles of stone that gave way beneath him so that he was precipitated under a passing trolley ear and injured; that the city had provided at least one safe crossing a short distance away; and that the evidence was insufficient to sustain a finding that a defined path had existed at the point in question for such a length of time that the city was bound to have taken notice and guarded against its dangers.
    Argued Jan. 4, 1912.
    Appeal, No. 177, Jan. T., 1911, by plaintiffs from order of C. P. No. 5, Phila. Co., June T., 1908, No. 6717, refusing to take off non-suit in case of Frank N. MacDermott by Ms father and next friend William J. MacDermott and William J. MacDermott in Ms own name v. City of Philadelphia.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Ralston, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was refusal to take off non-suit.

      George Demming, for appellants.
    The city is primarily responsible for injuries resulting by reason of unsafe and improper pavements and crossings at this place: Meyers v. Philadelphia, 217 Pa. 159; Burger v. Philadelphia, 196 Pa. 41; Holbert v. Philadelphia, 221 Pa. 266; Norbeck v. Philadelphia, 224 Pa. 30; Fleming v. Wilmerding Borough, 223 Pa. 295; Bucher v. Sunbury Borough, 216 Pa. 89.
    In following and walking on the indicated path or course allowed by the city to be there, this boy was within his rights as a pedestrian, since no other and secure crossing was provided, and the city is responsible for the defects and dangers of the path the same as any other part of a regular sidewalk or crossing: Conroy v. Pittston, 222 Pa. 1; Ackerman v. Williamsport, 227 Pa. 591; Henderson v. Continental Refining Co., 219 Pa. 384; Walsh v. Pittsburgh Railways Co., 221 Pa. 463; Millum v. Lehigh & Wilkes-Barre Coal Co., 225 Pa. 214.

      James J. Breen, assistant city solicitor, with him Joseph A. Dolan and Michael J. Ryan, city solicitor, for appellee.
    The city in this case is not subject to the doctrine of holding forth an attraction to the playful fancies of children to that which is dangerous: Thompson v. R. R. Co., 218 Pa. 444.
    The alleged negligence of the city was not the cause of the injury: Scranton v. Hill, 102 Pa. 378; Ohl v. Bethlehem Twp., 199 Pa. 588; Rhine v. Philadelphia, 24 Pa. Superior Ct. 564; Herr v. Lebanon, 149 Pa. 222.
    February 19, 1912:
   Opinion by

Mr. Justice Moschzisker,

This was an action of trespass brought by William J. MacDermott, as the father and next friend of Frank N. MacDermott and in his own behalf, against the city of Philadelphia, to recover damages for the injuries to the son alleged to have been due to the negligence of the defendant.

In the spring of 1908 the city of Philadelphia entered upon the construction of a new concrete bridge to replace an old one on Columbia avenue between Thirtieth and Thirty-first streets. At this point Columbia avenue runs east and west at right-angles with Thirty-first and Thirty-second streets, and there is a double-track railway operated upon it, the east bound track being upon the south side of the road-bed. In the course of the work it became necessary to place machinery, tools and building materials for use in and about the construction of the bridge on the cartway or road-bed of Columbia avenue between the curb on the north side and the southern or east bound railway track, between Thirty-first and Thirty-second streets, which resulted in the closing of that portion of the street to all traffic. Among the material thus deposited was a large quantity of grout or small stones used in concrete work, in piles two and a half or three feet high along the north side of the east-bound track.

On July 18, 1908, at about five o’clock in the afternoon, the plaintiff, Frank N. MacDermott, a boy about thirteen years of age, attempted to cross Columbia avenue diagonally from Thirty-first street on the north to Patten street on the south (the-latter being a small street between Thirty-first and Thirty-second streets running south from and at right-angles with Columbia avenue). After leaving the sidewalk on the north side of the street he climbed up on one of the piles of stone, and seeing a car approaching eastward he stood there to allow it to pass. Immediately after the front part of the car had passed him the stones gave way beneath his feet; he slid under the car and the wheels passed over his legs, causing the injuries complained of. It was testified that both sidewalks on Columbia avenue were kept open for the use of pedestrians, and that persons desiring to cross that street at this point had walked over these stones, their travel making a sort of path or footway across the same.

The trial judge entered a non-suit, which the court in banc refused to take off, and the plaintiff has ap-. pealed, assigning first, that the court below erred in refusing to take off the judgment of non-suit, and next, that error was committed in refusing evidence offered to prove that certain changes had been made in the street after the accident.

In entering the non-suit the trial judge, inter alia, said: “The entire street on Columbia avenue from Thirty-first to Thirty-second was shut off to traffic, cars on one track, the east-bound track, were permitted to go through, but nothing else was permitted to pass there, no vehicles of any kind were permitted on the street. The north side of the street was blocked, probably from Thirty-first street to nearly Thirty-second with piles of crushed stones extending from very near the curb all the way over the first car rails......So far as appears the crossing at Patten street was obstructed — that is the crossing at the end of Patten street for that street does not cross Columbia avenue— if there was a crossing there, and there is no testimony to show that there was, but the crossing at Thirty-second street appears to have been open and perfectly safe......The. City is of course bound to keep its streets and sidewalks in a reasonably safe condition. The sidewalks of the street were apparently perfectly safe. The city has the right to shut off the street when necessary to make repairs......In such cases it is impossible for pedestrians to cross the street haphazard as they are accustomed to do at other times. In this instance there was nothing illegal in the city permitting the stone to be piled on the street, nothing illegal in the street being closed to traffic. Therefore, what the city omitted to do I do not see. I see no negligence on the part of the city, and therefore grant the motion for a non-suit.”

A reading of the testimony satisfies us that the position taken by the trial judge was justified and that the court below committed no error in refusing to take off the non-suit. The testimony was too vague and indefinite to sustain a finding that a defined path or way over the pile of stones had been created or existed for such a length of time that the city was bound to have taken notice and guarded against its dangers. The breach averred and complained of in the statement of claim was that the city had failed in its duty to keep the street in proper and safe condition and had permitted a continuous pile of “small stones, dirt, sand and other materials to be placed on and over the road-bed without any prohibition or warning, necessitating a crossing or passage of said material by persons crossing said Columbia avenue, and inviting its use and crossing over the same to children and persons of immature mind and judgment. So that----when said plaintiff.....attempted to pass over the same....., by reason of the negligent and improper manner in which said material was placed and piled....., it suddenly gave way beneath him precipitating him under a passing trolley car .....” The theory of the defined pathway seems to have been an afterthought, and as we have already said, the evidence was not sufficient to sustain it. The city was not bound to anticipate the possibility that some one might leave the open sidewalk which it was maintaining and make a diagonal crossing of the street over the pile of stones, when it had left at least one safe crossing a short distance away at Thirty-second street. The municipality was engaged in a public undertaking and the street, except the sidewalk, was closed to traffic ; it provided a safe way to cross, with but little or no inconvenience to pedestrians, and its duty to the plaintiff was no higher in this respect than to others. The circumstances do not bring the present case within the line of authorities dealing with the responsibility of defendants guilty of exposing an invitation to danger to the playful fancy of children. The first specification of error is overruled. It only remains to say that we see no error in the ruling complained of in the second specification, and that is likewise overruled.

^ The judgment is affirmed.


author: Mr. Justice Mestrez'at,

text:
    Guenthoer’s Estate.

      Decedents’ ■ estates — Widow’s $5,000 preference — Statutes — Amendment of statutes — Constitutional law — Acts of April 8, 1888, P. L. 815; April 11, 1848, P. L. 5S6; April SO, 1869, P. L. 77, and A.pril 1, 1909, P. L. 87.

    1. The Act of April 1, 1909, P. L. 87, creating the widow’s $5,000 preference, applies not only to estates of intestates, but also to the estate of testates where the widow elects to take against the will.
    2. The Act of April 1, 1909, P. L. 87, entitled “An Act to amend Section 1 of an Act entitled ‘An Act relating to the descent and distribution of the estates of intestates,’ passed and approved April 8, 1S33, defining' and declaring the interest that shall descend to and vest in the surviving husband or wife of such intestate,” does not violate Article III, See. 6, of the Constitution, which provides that “no law shall be revived, amended, or the provisions thereof extended or conferred by reference to its title only but so much thereof as is revived, amended, extended or conferred shall be re-enacted and published at length.” The act refers to the general law in force at the time of its passage, and not to any special or particular statutes; therefore the constitutional requirement as to re-enactment and publication has no application.
    3. Where the reference in an adopting statute is to the law generally which governs the particular subject and not to any specific act or part thereof designated in the adopting act, the reference means the law at the time the exigency arises as to which the law is to be applied; and there is no distinction between acts relating or referring to procedure, and acts affecting substantive rights.
    4. The Act of April 1, 1909, P. L. 87, giving the widow a preference of $5,000 does not violate the constitution as being inadequate in title, although the act is construed as being applicable to the estate of testates where the widow elects to take against the will, inasmuch as the act deals with the $5,000 as a part of an intestate’s estate, and not as a part of a testate’s estate.
    5. That portion of a testator’s estate which the widow elects to take against her husband’s will comes to her by virtue of the statute, not as the estate of a testate, and as such devised or bequeathed to her, but as an estate of an intestate.

      Argued, Jan. 4, 1912.
    Appeal, No. 184, Jan. T., 1911, by Jacob Guentboer, from decree of O. O. Phila. Co., Jan. T., 1910, No. 16, dismissing exceptions to adjudication in Estate of Joseph Guentboer deceased.
    Before Fell, O. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Exceptions to adjudication.
    'The opinion of the Supreme Court states the case.

      Error assigned was decree dismissing exceptions to adjudication.

      Alex. Simpson, Jr., for appellant.
    — It is a general rule of statutory construction that if an act adopt the provisions of a preceding act, which are not merely procedural, an amendment or repeal of the latter will not extend, limit or repeal the former: Kendall v. U. S., 37 U. S. 524.
    In re Heath, 144 U. S. 92 (12 Sup. Ct. Repr. 615); Shull v. Barton, 56 Nebraska 716 (77 N. W. Repr. 132); Darmstaetter v. Moloney, 45 Mich. 621 (8 N. W. Repr. 574); University of Michigan Regents v. Auditor General, 109 Mich. 134 (66 N. W. Repr. 956); Schlaudecker v. Marshall, 72 Pa. 200.
    A statute will be so construed as to interfere as little as possible Avitb a person’s right to do as he pleases with his own: Cauffman v. Long, 82 Pa. 72; McGlade’s App., 99 Pa. 338.
    It is a presumption of laAv that the legislature does not intend to alter the preexisting law beyond the immediate scope of an amending statute: Foster v. Com., 8 W. & S. 77; Esterley’s App., 54 Pa. 192; Colorado Milling & Elevator Co. v. Mitchell, 26 Colo. 284 (58 Pac. Repr. 28).
    Such a construction should be given to a statute as will harmonize with the spirit as well as the letter of constitutional provisions: Wilkes-Barre v. Meyers, 113 Pa. 395; Provident Life & Trust Co. v. Hammond, 230 Pa. 407; Searight’s Estate, 163 Pa. 210.

      John Monaghan, with him David Phillips, for appellee.
    The widow is entitled to the share given her by the act of 1909, where she elects to take against the will of her deceased husband, there being no issue: Gilbert’s Estate, 227 Pa. 648; Lingo’s Estate, 20 Pa. D. R. 34; Whilt’s Estate, 19 Pa. D. R. 550; Guenthoer’s Estate, 20 Pa. D. R. 704; Williams’s Estate, 20 Pa. D. R. 816; Blackburn’s Estate, 38 Pa. C. C. R. 379.
    The appellee having declined to accept under the will, the intestate laws supersede the will as to her: As to her there is no will and her rights are to be determined as if none had ever been written: Murray’s Estate, 28 Pa. Superior Ct. 474; Hoover v. Landis, 76 Pa. 354; Cunningham’s Estate, 137 Pa. 621.
    The operation of the Act of April 11, 1848 (P. L. 536), is not limited to the intestate laws in existence at the time of its passage: Vernon Park, 163 Pa. 70; State v. Hays, 78 Mo. 600; U. S. v. Barton, 24 Fed. Cases 1025 Case No. 14,534; Culver v. People, 161 Ill. 89 (43 N. E. Repr. 812); Newman v. Yakima, 7 Wash. 220 (34 Pac. Repr. 921); Jones v. Dexter, 8 Fla. 276; Harris v. White, 81 N. Y. 532.
    The Act of 1909 must be regarded as if at this time it were written into the body of the Act of April 8,1833. The Act of 1909 speaks as of 1833 as to deaths pf husbands occurring after the passage of the Act of 1909, and, therefore, the Acts of 1848 and 1869, giving to the widow taking against the will the same share as if her husband had died intestate, should be construed so as to allow the widow the additional five thousand dollars under the Act of 1909.
    February 19, 1912:
   Opinion bx

Mr. Justice Mestrez'at,

Joseph Guenthoer died on December 18, 1909, leaving a widow and collateral heirs but no issue. He executed a will dated September 5, 1907, which was duly probated, and by which he gave his entire estate to his brother, Jacob Guenthoer, and appointed his brother Otto Guenthoer, executor, to whom letters testamentary were granted December 27, 1909.

The executor filed his account by which it appeared that the balance in his hands for distribution was $4,497.37. The widow presented a petition to the orphans’ court averring inter alia that she had elected to take against her husband’s will; that under the act of April 1, 1909, P. L. 87, she was entitled to real or personal estate or both to the aggregate value of $5,000 in addition to her widow’s exemption, and in addition thereto, to one-half of the remaining real estate for life and of the remaining personal estate absolutely; that the decedent was not seised of any real estate at the time of his death; that under the provisions of said act the petitioner had selected the articles and cash set forth in the annexed inventory and appraisement; and prayed the court to approve the inventory and appraisement, and to decree that said articles and cash be set apart for her use and benefit. The court directed the petition to be filed. Subsequently at the audit of the executor’s account, the auditing judge held that the widow was entitled, under the act of 1909, to the sum of $5,000 out of the decedent’s estate, and awarded the balance in the hands of the accountant, which was less than $¿,000, to the widow as prayed for in her petition. Exceptions were filed to the adjudication by Jacob Guenthoer, the legatee, which were dismissed by the court in banc, and a decree was entered confirming the adjudication. From that decree Jacob Guenthoer has taken this appeal.

The appellant contends that the act of 1909 applies to the estates of intestates, and-not to the estate of testates where the widow elects to take against the will, and that if applied to the latter it would be unconstitutional as it does not refer to such estates either in its title or body, and would violate article 3, section 6, of the constitution which provides that “no law shall be revived, amended, or the provisions thereof extended or conferred by reference to its title only, but so much thereof as is revived, amended, extended or conferred shall be re-enacted and published at length.” It is, therefore, claimed that as Joseph Guenthoer died testate, disposing of his estate by will, the act of 1909 has no application, and that the widow, although taking against the will, is not entitled to five thousand dollars out of the decedent’s estate.

In disposing of the question raised by this appeal it will be necessary to refer to and consider the prior legislation affecting the estates of decedents. The act of April 8, 1833, P. L. 315, 2 Purd. 1994, is entitled “An act relating to the descent and distribution of the estates of intestates.” That act directs how the real and personal estate of an intestate decedent shall be divided, after the payment of his debts and which had not been sold or disposed of by will. Where he leaves a widow and issue, the widow is entitled to one-third part of the real estate for life and to one-third part of the personal estate absolutely. Where he left a widow and collateral heirs but no issue she was entitled to one-half part of the real estate for life, and to one-half part of the personal estate absolutely. Section 11 of the act of April 8,1833, P. L. 249,1 Purd. 1275, relating to last wills and testaments, provides that “a devise or bequest by a husband to his wife of any portion of his estate or property, shall be deemed and taken to be in lieu and bar of her dower in the estate of such testator, * * * provided, that nothing herein contained shall deprive the widow of her choice either of dower, or of the estate or property so devised or bequeathed.” The 11th section of the act of April 11, 1848, P. L. 536, 1 Purd. 1276, provides that the 11th section of the act of April 8, 1833, just referred to, “shall not be construed to deprive the widow of the testator, in case she elects not to take under the last will and testament of her husband, of her share of the personal estate of her husband under the intestate laws of this commonwealth; but that the said widow may take her choice, either of the bequest or devise made to her under any last will or testament, or of her share of the personal estate under the intestate laws aforesaid.” Subsequently the act of April 20,1869, P. L. 77,1 Purd. 1278, was passed, section one of which provides that where the decedent shall leave- a will and the widow elects not to take thereunder, “she shall be entitled to such interest in the real estate of her deceased husband as the widows of decedents dying intestate are entitled to under the existing laws of this commonwealth.”

Such was the statutory law of the state regulating the estates of decedents when the act of April 1, 1909, P. L. 87, 5 Purd. 5621 was passed under which the widow of Joseph Guenthoer, deceased, claimed five thousand dollars out of his estate. The act is entitled “An act to amend section one of an act entitled ‘an act relating to the descent and distribution of the estates of intestates,’ passed and approved April 8, 1833, defining and declaring the interest that shall descend to and vest in the surviving husband or wife of such intestate.” The act disposes of the real and personal estate of a decedent, after payment of his debts and which shall not have been sold or disposed of by will, and contains a general repealing clause. It makes no change in the portion of the estate which goes to the widow where there is surviving issue. Where, however, the intestate leaves no issue but a widow and collateral heirs, article 2, section 1, provides: “Where such intestate shall leave a widow, and collateral heirs or other kindred, but no issue, such widow shall be entitled to the real or personal estate, or both, to the aggregate value of five thousand dollars, in addition to the widow’s exemption as allowed by law; and if such estate shall exceed in value the sum of five thousand dollars, the widow shall be entitled to such sum of five thousand dollars absolutely, to be chosen by her from the real or personal estate, or both; and, in addition thereto, shall be entitled to one-half part of the remaining real estate, for the term of her life, and to one-half part of the remaining personal estate, absolutely: provided, that the procedure for appraising and setting apart the said five thousand dollars in value of property shall be the same as provided in section five of the act of assembly, approved April fourteenth, one thousand eight hundred and fifty-one, relating to widows’ exemptions.”

In support of his position, the learned counsel for the appellant contends that the widow of a testate, electing to take against his will, is entitled only to such part of the testator’s estate as was given her by the intestate laws in force at the time of the enactment of the acts of 1848 and 1869, on the principle that if an act adopt the provisions of a preceding act, an amendment or repeal of the latter will not extend, limit or repeal the former. The rule of construction, suggested by counsel, is uniformly recognized and enforced. If a statute specifically adopts a former statute or particular provisions of a former statute by reference to its title or otherwise, such statute or particular provisions thereof become a part of the adopting statute as though written therein, and are enforced by virtue of the adopting act, but it does not include any subsequent amendment or modification of the prior statute or its particular provisions, unless expressly so declared or is clearly implied. While this general rule of statutory construction is well settled and recognized by judicial decisions as well as by text writers, yet it is equally well established as a rule of statutory construction that where the reference in an adopting statute is to the law generally which governs the particular subject, and not to any specific act or part thereof designated in the adopting act, the reference means the law at the time the exigency arises as to which the law is to be applied. We have frequently recognized this distinction and applied the rule that where the reference in an adopting statute is to the law generally upon any subject, the adopting statute means the law in force on the subject at the time it is invoked: In re Vernon Park, 163 Pa. 70; Kugler’s Appeal, 55 Pa. 123. The learned counsel for the appellant apparently concedes that the latter is the proper rule of construction where the act adopts a prior procedural statute, but not a statute affecting substantial rights. We do not agree that such distinction is tenable, and have been cited to no authority that supports it. The numerous cases cited by the learned counsel for the appellant do not sustain his position. They are clearly distinguishable on the ground that the adopting act referred to a special or particular statute or to a special or local law or to a particular section or provision of another act. On reason there can be no distinction between acts relating or referring to procedure and acts affecting substantive rights. When an adopting statute refers generally to the law affecting substantive rights it evidently means that it is to be the law in effect at the time its provisions are invoked. It is the law, whatever it may be at the time the facts require its application, that the adopting act means to declare shall regulate the subject to which it relates. If, on the other hand, the adopting act declares as the law of the state any specific statute or part thereof it is equally manifest the legislature intends that the specific provisions thus adopted, and they alone, shall be the law in such cases. When therefore the adopting act declares generally that the law relating to any particular subject, and not a specific act, local or general, shall be the law regulating the subject, the legislative intent is that the adopting act refers to the law in force at the time when it is invoked. We think that this rule of construction applies whether the former act is procedural or affects substantive rights. It has been so held in other jurisdictions: Jones v. Dexter, 8 Fla. 276, Harris v. White, 81 N. Y. 532. Therefore, a widow who elects to take against her husband’s will is entitled under the acts of 1848 and 1869 to take under the intestate laws in force at the time of the death of her husband.

We recognize the principle urged by the appellant that a statute will be so construed as to interfere as little as possible with the right of a person to dispose of his property as he pleases, and that it will not be presumed that the legislature intends to alter an existing law beyond the immediate scope of the amending act. We fail, however, to see wherein these rules can be invoked to sustain the position of the appellant. The legislature has authority to determine the course of descent in case of intestacy and in whom the property of an intestate shall vest at the time of his death. Such authority has never been questioned, and it is universally exercised by the legislatures of the states of this union. Nor is there any natural or inherent right in any person to make a testamentary disposition of his property. The authority to make a will is statutory. The legislature, subject to constitutional provisions, may declare that the owner of property may dispose of all or any part of it by will, and to the exclusion of his widow or his issue. In the exercise of the same authority, the legislature may declare that no person shall dispose of any part of his property, and that after his death it shall descend or vest in any person or persons which it may designate. Such power is lodged with the legislature and it has uniformly exercised it. We have an illustration in this state. While the Wills Act ®f 1833 permitted every person of sound mind to dispose of his property by will, it excepted from its provisions married women and infants under the age of twenty-one years. It was not until fifteen years later that our legislature, recognizing the injustice of depriving a married woman of the right to make a testamentary disposition of her own property, authorized her by the act of 1848 to dispose of it by will, executed in a prescribed form, and it was not until fifty-four years after “any person of sound mind” was clothed with legislative authority to “dispose by will of his or her real estate” by the act of 1833 that the legislature, by the statute of June 3,1887, P. L. 332, enacted that a married woman might dispose of her property by will “in the same manner as if she were unmarried.” The age of testacy, however, remains as it was fixed by the act of 1833, and every person in this state, irrespective of sex, intelligence, or the value of the property who is under the age of twenty-one years, is without authority to dispose of an estate by will.

Exercising the power reposed in it, the general assembly has, by the legislation above referred to, regulated the disposition of estates left by testates as wel1 as intestates. It is seen that by the Wills Act of 1833 the widow cannot be deprived of her dower in the estate of her husband by any will he may make; that by the act of 1848, the widow electing to take against the provisions of her husband’s will is entitled to her share of the personal estate under the intestate laws; and that by the act of 1869 in case of her election to take against the will she shall be entitled to such interest in the real estate of her deceased husband as widows of intestate decedents are entitled to under the existing laws of the commonwealth. The effect of this legislation is manifestly to declare that, at the option of the widow, a testator dies intestate as to that portion of his estate to which she is entitled under the several statutory provisions. Had the legislature made such a declaration in terms its intention could not be plainer nor more apparent. As to part of his estate, therefore, such decedent dies testate, and as to the other part of his estate, by the express declaration of the statutes, Ms widow takes her share under the intestate laws, and necessarily he dies intestate.

We must assume that the legislature knew at the time of the passage of the act of 1909 the status of the legislation on the subject with which it dealt. It knew that where an intestate left a widow and collateral heirs but no issue the widow was entitled to a certain portion of his estate. It also knew that where a decedent died testate and his widow elected to take against his will that she was entitled to her share of the personal estate under the intestate laws, the effect of which was that the decedent died intestate as to that portion of his estate. It was in the light of this legislation that the act of 1909 was passed to amend the act relating to the descent and distribution of the estates of intestates. It dealt with and included estates which were taken by widows by virtue of the intestate laws of the commonwealth, whether there was a total or partial intestacy. It did not intend to make a distinction between widows whose husbands died without wills and those who elected to take against their husbands’ wills, thereby creating a partial intestacy. There was certainly no intention on the part of the legislature in passing the act of 1909 to make a distinction, and to give the widow of a husband dying intestate five thousand dollars more than the widow who elects to take against her husband’s will and, therefore, under the intestate laws. Such distinction does not clearly appear by the act of 1909 and hence it will not be presumed that the legislature intended it. The purpose of the act of 1909 was simply to give to the widow of a decedent who died without issue the sum of five thousand dollars in addition to that part of his estate given her by the intestate act of April 8, 1833. We have" construed the provisions of that act applying to such widows, and held that on her election she had the right to take the portion of the decedent’s estate given her by that statute. In dealing with the subject and in increasing the amount ^ to which a Avidow under such circumstances would be entitled, the legislature presumed that the same interpretation Avould be given the similar provision of the act of 1909, and that a testator would be regarded, as the statute declares, as dying intestate as to that part of his estate which his widow elects to take against his will. The general assembly, therefore, correctly dealt with the five thousand dollars as a part of an intestate’s estate, and not as a part of a testate’s estate.

There is no merit in the contention that the act of 1909 offends article III, section 6, of the constitution. It applies to the estates of intestates and to that part of the estates of testates as to Avhich the decedent dies intestate. As suggested above, that portion of a testator’s estate Avhich the Avidow elects to take against her husband’s Avill comes to her by virtue of the statutes, not as the estate of a testate and as such devised or bequeathed to her, but as an estate of an intestate. By the express provision of the act of 1848, she takes under the intestate laws of the commonwealth and, hence, as to that portion of the estate her husband necessarily dies intestate. The title of the act of 1909 is, therefore, germane to the subject of the body of the act, and does not offend the constitution.

The decree of the court below is affirmed.