text:
    Spangler v. Trogler, Appellant.

      Ejectment — Rule to bring ejectment — Disputed title — Possession— Act of March 8,1889, P. L. 10.

    1. Where a person by himself and his predecessors has been in actual possession for over seventy years, of a cleared portion of a warrant, and has by the cutting of timber or other acts been in possession in the remaining portion of the warrant which is uninclosed and unimproved woodland, such possession of the woodland is sufficient to give the person so holding it a right to a rule upon a person claiming the record ownership, to bring an action of ejectment within six months as provided by the Act of March 8, 1889, P. L. 10, and its supplements.
    2. In such case the right of the petitioner to the rule is not defeated by the fact that he holds title subject to an agreement to reconvey on a future happening.
    Argued March 7, 1910.
    Appeal, No. 153, Jan. T., 1909, by defendant, from order of C. P. Franklin Co., Sept. T., 1906, No. 83, making absolute rule to bring ejectment in case of Henry Spangler and D. W. Faust v. William A. Trogler.
    Before Fell, C. J., Brown, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Petition for rule to bring ejectment.
    A. O. Smith, P. J., specially presiding, filed the following opinion:
    This is a proceeding brought under the provisions of the Act of assembly passed March 8, 1889, P. L. 10, as amended by the Act of April 16, 1903, P. L. 212. The' petitioners presented their petition April 30, 1906, alleging title in fee simple to a certain tract of timber land situate in Warren township, Franklin county, Pennsylvania, containing eighty-eight acres and 114 perches, and alleging the lawful possession of the same under their claim of title; also that defendant, William A. Trogler, who was not in possession of said tract, claimed an interest or title thereto, and praying for a rule upon the said respondent, William A. Trogler, to bring his action of ejectment within six months or show cause why the same cannot be so brought. To this rule defendant filed his answer September 17, 1906, setting up a complete and consecutive paper title from the commonwealth of Pennsylvania to himself for the land in controversy. Said answer alleged that the land claimed was uninclosed and unimproved woodland and that the plaintiffs did not have possession of the same, so as to bring themselves within the terms of the act of assembly under which the proceeding was commenced. Upon replication being filed both sides proceeded to take testimony. This testimony is very voluminous and much of it was perhaps not relevant to the particular controversy involved in this rule, for the reason that this is not a trial of an action of ejectment but simply a proceeding to determine whether or not the court has jurisdiction under the facts to compel the defendant to bring his action.
    From this testimony we find the following facts as material and applicable to the consideration of the issue joined:
    1. The petitioners, Henry Spangler and D. W. Faust claim title and right of possession to the land in controversy, together with other lands, by virtue of a deed from John Fritz, dated May 14, 1904, and recorded in the recorder’s office in Franklin county. This deed is absolute on its face and under it the petitioners took possession and commenced cutting timber until stopped by proceedings brought against them by the respondent in this rule.
    2. In connection with the said deed, and on the same day, an agreement was entered into between John Fritz of the one part, and D. W. Faust, afterwards joined in by Henry Spangler, of the other part, the terms of which are as follows, in full:
    “Whereas the said John Fritz has this day conveyed to Henry Spangler and D. W. Faust a tract of timber land situate in Warren township aforesaid, containing one hundred and thirteen acres and seventy-nine perches of land for the consideration therein mentioned but which said sum of money has not yet been paid, but said conveyance has been made for the purpose of enabling said Faust and said Spangler to exercise and enjoy the full and complete control and management of said tract of land so long as any timber remains thereon and after the timber on said land has been cut and removed from the premises in accordance with the terms of this agreement the said Faust and Spangler for themselves and for their respective heirs agree for a nominal consideration, to reconvey the same tract of land mentioned herein to the said John Fritz or to his heirs.
    “The price at which the timber on said land is sold to said D. W. Faust is Twenty ($20.00) Dollars per acre the number of acres to be determined by a survey which is to be made as soon as practicable by S. Y. Wingert, county surveyor, or by some other surveyor whom the parties hereto may mutually agree upon. No cleared land is to' be calculated in said survey in determining the number of acres of timber land to be paid for by said Faust as herein set forth, and it is estimated that the number of acres of timber land will not exceed one hundred. Payments for said timber shall be made as follows: $150.00 to be paid said Fritz when the first fifty tons of bark have been removed from the land, an additional $150.00 to be paid when the balance of the bark on said tract of land has been peeled and removed from the land $200.00 to be paid when 50,000 feet of lumber have been removed, and $200.00 to ‘be paid upon the removal of each and every subsequent 50,000 feet of timber until the whole price herein agreed upon for said timber shall have been paid for in full, and in case there should still be a balance due said Fritz when all of said bark and timber have been removed from the land, the said Faust agrees to settle in full for the same under the terms hereof within sixty days after the last of the timber in said land has been removed.
    “Said Fritz further agrees that he will save harmless the said Faust and Spangler in any law suit that may be prosecuted or instituted against them by any person or persons whomsoever claiming or to claim any part, parcel or interest in or to the land herein mentioned and will pay all costs and expenses of the said Faust and Spangler or either of them incident to the defense or prosecution of any claim against or by them respecting this land or the timber thereon, and said Faust is hereby authorized to expend the first moneys due said Fritz for bark or timber in the defense or prosecution of such suit or suits in case the same be deemed necessary. It is understood and agreed that all the cleared land on this tract shall be used, occupied and enjoyed by said Fritz in the same manner as he now uses the same.
    ' “The cost for recording the deed for the land herein named and of writing and executing the papers connected therewith are to be paid by said Faust out of the first money in his hands available for that purpose and to be deducted from the price to be paid by said Faust to said Fritz for timber.”
    3. That the land in dispute, together with other lands, in all containing 204 acres and twenty-four perches, was obtained by the vendor of the petitioners, viz., John Fritz on February 28, 1876, under proceedings in partition in the orphans’ court of Franklin county on the estate of his father, Jacob Fritz, who died March 4, 1874, and that from that time until the date of sale to the petitioners John Fritz was in the open, notorious and visible possession of the said 204 acres and used the same as one property.
    4. That the said 204 acres and twenty-four perches embraces two original warrants, namely, the Ramsey warrant, dated August 22, 1785, containing seventy-two acres and 106 perches and allowance, surveyed December 5, 1789, and the Frederick Long warrant, dated October 19, 1792, surveyed October 28, 1794, containing 111 acres and 111 perches and allowance, as shown by the certificates from the land office at Harrisburg.
    5. That said Ramsey and Long warrants had been in the possession of Jacob Fritz, father of John Fritz and of Jacob Fritz’s father, also named Jacob Fritz,, for a long period of years; and that the whole thereof, consisting of 204 acres and twenty-four perches and allowance, has been used by the Fritz family for all of said period as one property, a large portion thereof being cleared by them and used as a farm, the balance of the said 204 acres and twenty-four perches consisting of the woodland now in dispute and which was mostly situated upon the Frederick Long warrant. Although open, uninclosed and unimproved, it was used by the said Fritzs for two or three generations for the general purposes of the farm, in making fences, shingles, timber and firewood. That Jacob Fritz, 2d, father of John Fritz, was a cooper by trade and cut over the whole tract of woodland now in dispute from time to time, for the purposes of his trade in securing stave timber.

      6. That lying within the boundaries of the Frederick Long warrant are three or more cleared fields, each of six or more acres, irregularly carved out of the said Long warrant on its western side next to the Ramsey warrant, and that so far as the said cleared land is concerned there is no contest as to the open, notorious and uninterrupted possession by the Fritzs, predecessors in title of the petitioners.
    7. That this dispute arises by reason of the interference of the Ramsey and Long warrants with a warrant in the name of Charlotte Carlile, dated August 24, 1785, surveyed November 11, 1785, for 323 acres, forty-two perches and allowance, and which warrant embraced within its boundaries most, if not all, of the said Ramsey and Long warrants; respondent William A. Trogler,
    .offered in evidence what is claimed as a complete consecutive paper title to the whole of the Charlotte Carlile warrant. From which fact, mainly, respondent contends to have the title and right of possession of the uninclosed and unimproved woodland of the Frederick Long warrant embraced within the bounds in which the said Long warrant interferes with the Carlile warrant.
    8. That in the lifetime of Jacob Fritz, 2d, some time during 1870 or 1871, George W. Wolf and other, the immediate predecessors in title of the respondent, William A. Trogler, cut certain timber on the land in dispute whereupon an action of trespass was brought against them by Jacob Fritz to No. 238, April Term, 1871. That Jacob Fritz died before the case came to trial and his heirs at law were substituted upon the record as plaintiffs, and that the record in said case shows that judgment was confessed by the defendants in favor of the plaintiffs September 14, 1875, for $350 and costs. It was also alleged in testimony, and not disputed, that this confession of judgment was the result of a settlement whereby the defendants not only agreed to pay the above sum but agreed to quitclaim to the heirs of Jacob Fritz the land in controversy, but no quitclaim deed or other conveyance is offered to show that said purpose was carried out.

      9. After said settlement and confession of judgment aforesaid, on September 17, 1875, a petition was presented in the orphans’ court of Franklin county for an inquisition on the real estate of Jacob Fritz, deceased, which inquisition was subsequently, on December 2, 1875, held on the land by the sheriff, and among the jurors summoned by the sheriff to appraise the land in dispute, inter alia, as the property of Jacob Fritz, was George W. Wolf, the immediate predecessor in title of the respondent, also Hiram Y. Reese, one of the predecessors in title of George W. Wolf to the land in dispute. It also appears in testimony, in the deed offered, that when Hiram Y. Reese conveyed the property now claimed by the respondent to Emmert and Nesbitt, predecessors in title to George W. Wolf, grantor stated that he did not warrant title to eighty-eight acres and seventy-nine perches and allowance lying east of Little Cove road, being the land now in dispute.
    10. It also appears from the testimony offered, that from the time the action of trespass was instituted against Wolf and others, in 1871, until the time of his death in 1896, the said Wolf exercised no acts of ownership over the timber land in controversy, and several witnesses were called on behalf of the petitioners to show that he told parties not to cut timber on said land as it was not his timber. After the death of George W. Wolf the land in dispute was included in the deed made by his executors to the respondent for a large portion of the Charlotte Carliie warrant.
    11. That the respondent, himself, is not shown by the testimony to have exercised any acts of ownership over the timber land in controversy for many years after his purchase and until after the purchase of the timber by the petitioners, Spangler and Faust, and after they had commenced cutting thereon. Respondent, William A. Trogler, then brought an action of ejectment to No. 23, February Term, 1905, and filed his declarations therein in which it is averred that the present petitioners are now in actual possession of the premises now in dispute. This action of ejectment, after being put at issue, was discontinued by the plaintiff, and in the summer of 1906, respondent' purchased fencing wire and attempted to erect a fence between the cleared fields of the Long warrant belonging to the farm of John Fritz and the uninclosed woodland, which fence was at once destroyed by the petitioners.
    12. We find as a fact that the said D. W. Faust and Henry Spangler, petitioners, were in actual possession of the said timber land in dispute, consisting of eighty-eight acres and 114 perches, from the time of their purchase of said tract from John Fritz, for the purpose of cutting and removing therefrom the timber purchased by them by virtue of the conveyance hereinbefore recited, and that they were thus in the actual possession of the same at the time of the institution of this proceeding.
    13. That the respondent, William A. Trogler, at the institution of this proceeding was not in the actual possession and control of any portion of the eighty-eight acres and 114 perches of woodland in dispute, and that neither he nor his predecessors in title had ever been in lawful possession of the same for' any purpose.
    CONCLUSIONS OF LAW.
    ■ 1. We find, as a matter of law, that John Fritz, predecessor in title to the petitioners, as also Jacob Fritz, his predecessor, were bona fide in possession, of the woodland now in dispute' under color of the title within the meaning and terms of the act of March- 8, 1889, as amended by that of April 16, 1908.
    2. That there is not sufficient dispute of the actual possession of the petitioners in this case to oust the jurisdiction of the' court under and by virtue of the said acts, or to compel the petitioners to resort to the provisions of the act of June 10, 1893, in order to settle the controversy as to title between the parties.

      3. That the written agreement of May 14, 1904, entered into contemporaneously with the deed from John Fritz to the petitioners, does not defeat the right of possession vested in the petitioners by virtue of the deed of even date. Without construing it at length, its legal effect is, first, an agreement to reconvey the land to Fritz after the cutting and removal of the timber by the petitioners; second, to fix and make certain the terms of payment for the timber to be cut and removed; third, to cast upon John Fritz, the grantor in the deed given, the burden of defending his title, which burden by virtue of this agreement is probably no greater than that provided for by the warranty of his deed.
    As we construe the whole transaction, the legal effect of the deed was to vest in Faust and Spangler whatever right of possession and title to the tract named may have been held, claimed or owned by John Fritz. The contemporaneous agreement, in its preamble, recites the purpose of the deed as being to enable Faust and Spangler “to exercise and enjoy the full and complete control and management of said tract of land so long as any timber remains thereon,” and this purpose involves an absolute right of possession. There is nothing in the further clauses of the agreement which can be construed to minimize, lessen or defeat this absolute right of possession vested in the petitioners for whatever of possession and control over the timber land had been previously enjoyed by John Fritz.
    DISCUSSION OF LAW AND FACTS.
    This proceeding is under the Act of March 8, 1889, P. L. 10, which was first amended by the Act of May 25, 1893, P. L. 131, and later by the Act of April 16, 1903, P. L. 212, which amendments, however, are not necessary to be considered here. The act is entitled, “An Act to settle title to real estate,” and in our judgment should receive a fair and liberal construction and not receive such a narrow construction as to defeat the purposes of the act. There is, of course, a similar Act dated June 10, 1893, P. L. 415, which can be used where the title to property is. disputed and to compel settlement of titles. The two acts have a common purpose, viz., settlement of title to real estate, but the provisions of the acts show that they are intended to take effect under different circumstances.
    This proceeding being admittedly under the act of 1889, the question is, What are the jurisdictional facts necessary to put the case within the terms of that act? The language of the act is, “Whenever any person not being in possession thereof shall claim or have an apparent interest in or title to real estate, it shall be lawful for any person in possession thereof claiming title to the same to make application to the court,” etc. Two facts then must appear to give jurisdiction, first, possession by plaintiff or petitioner claiming title, that is, having color of title; and, second, a claim of title by the other party out of possession. In the petitioner or plaintiff there must be two things, possession and claim of title. As is said by Judge Lindsey, in Welsh’s Petition, 13 Pa. Dist. Rep. 498: “The possession of a mere intruder, or squatter, without color of title or claim thereto, would probably not be entitled to the benefit of the act.” It is not, however, necessary to decide that the plaintiff’s title is a good one. All that is necessary is that there is possession under some claim or color of title: Fearl v. Johnstown, 216 Pa. 205; Welsh v. Clough, 216 Pa. 276, reversing Judge Lindsey in Welsh’s Petition, 13 Pa. Dist. Rep. 498. j
    In this case, as we have found, the Fritz family, grandfather, father and son, have been in the actiial possession of the land covered by the two warrants, the James Ramsey and the Frederick Long, containing in all 204 acres clearing over one-half of the said 204 acres during the last seventy years and farming it. The cleared land actually farmed extended not only over the Ramsey warrant but for a considerable distance over the line between the two warrants into the Frederick Long warrant. In the action of ejectment brought by respondent against the petitioners in 1905, the description in the pleadings notches out the cleared fields of the Fritz farm extending into the Long warrant and simply describes that which they claim is woodland only, uninclosed and unimproved. So in this proceeding petitioners describe only the uninclosed and unimproved woodland. Both proceedings recognize and concede that there was the actual possession by clearing and farming of the cleared fields of the Long warrant so that even if there was not an actual possession by cutting of timber upon the woodland there would yet be the constructive possession of the woodland following the possession of a part of the Long warrant as farm land under a claim of title.
    This is the well-recognized law of Pennsylvania as shown by a great many decisions. As is said in the syllabus to Ament’s Executor v. Wolf, 33 Pa. 331, “In case of interfering surveys if the owner of the younger title enter upon and occupy a part of his tract and use the uninclosed woodland within the lines of his survey as woodland is ordinarily used this is not a constructive, but an actual possession of the woodland and would give title thereto under the statute of limitations, notwithstanding the entry by the owner of the elder survey upon another portion of his tract. The constructive possession which the law attributes to the legal title is ousted by such use of the woodland; and an actual entry by the owner of the elder title upon another part of his tract is not sufficient to vest the possession in him as against the occupier under the younger survey.” The same principles respecting actual and constructive possession under different conditions and facts appear in Hole v. Rittenhouse, 37 Pa. 116; Burke v. Hammond, 76 Pa. 172; Williams v. Beam, 196 Pa. 341, and many other cases.
    In this case for a long period of years it is clear from the testimony that the Fritzs used the entire Long warrant including the woodland in dispute along with their other farm land for general farm purposes; also that Jacob Fritz, 2d, was a cooper and cut a considerable portion of the large timber on the tract for the purposes of his trade. The surveyor and a son of the respondent both testified to the fact that stumps, as many as six to the acre, having been cut for a number of year's, showed over the entire tract. We think, therefore, we were justified in finding as a fact that there was a possession, either actual or constructive, in the predecessors of petitioners in the possession and claim of title to the woodland in controversy. It is also equally clear that there can be no question that there is a claim or color of title at least in the Fritzs, and the only question remaining is one raised by the admission of the agreement between petitioners and Fritz contemporaneous with the deed to petitioners. It is earnestly contended by counsel for respondent, that the effect of this agreement is to oust the jurisdiction of the court in this matter, owing to the fact there is no title in petitioners, taking the deed and the agreement together as one paper. We do not agree with this contention. The agreement of course to some extent limited the conveyance to petitioners, in that it is an agreement to reconvey the land after the timber is stripped off. The title, therefore in Spangler and Faust, is subject to the terms of this agreement. It in no sense, however, defeats the right of actual possession, and ejectment is a possessory action only.
    For the purpose of settling all controversies between the parties, the respondent can bring his action against not only the petitioners but against John Fritz as well. The fact that Spangler and Faust have not paid John Fritz is wholly immaterial to the respondent. Neither is the fact that John Fritz by this agreement undertakes to bear all the expenses of litigation of any consequence to this controversy or any impeachment of the possessory right conveyed to petitioners. Both these facts are important as between John Fritz and Spangler and Faust but are matters with which respondent has nothing to do and we cannot see that it in any way interferes with the right of petitioners to bring this action.
    May 9, 1910:
    Upon the whole case, therefore, we think that there is here presented a case clearly within the terms and conditions of the act of 1889 and its supplements, and that this rule should be made absolute.
    DECREE.
    Now, April 22, 1908, the rule heretofore granted upon William A. Trogler “to bring his action of ejectment within six months from the service of such rule upon him or to show cause why the same cannot be so brought” is hereby made absolute, and the said respondent is hereby given six months from the date of this decree in which to bring said action of ejectment before being subject to the provisions of the act of 1889 and supplements respecting judgment thereon. All costs of this proceeding on the rule to show cause to be paid by the respondent. Exception noted for William A. Trogler, respondent, and bill sealed.

      Error assigned was the order of the court.

      William S Hoerner, with him Walter & Gillan, for appellant.

      J. R. Ruihrauff, of Ruihrauff & Nicklas, and O. C. Bowers, with them II II. Spangler, for appellees.
   Per Curiam,

The judgment is affirmed for the reasons stated in the opinion of Judge Smith, specially presiding.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Ellis v. Metropolitan Life Insurance Company, Appellant.

      Insurance — Life insurance — Application attached to policy — Act of May 11,1881, P. L. §0.

    In an action upon a policy of life insurance the insured may offer in evidence the policy without the copy of the application attached to the policy, where it appears from an inspection of the papers that the copy attached to the policy was not a correct copy of the original application signed by the insured.
    Argued March 7, 1910.
    May 9, 1910:
    Appeal, No. 173, Jan. T., 1909, by defendant, from judgment of C. P. Northampton Co., April T., 1906, No. 40, on verdict for plaintiffs in case of Mary Ellis, Elizabeth Jones and Emily Griffith, by her next friend, J. Ruskin Jones, v. Metropolitan Life Insurance Company.
    Before Pell, C. J., Brown, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit on a policy of life insurance. Before Scott, P. J.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for plaintiff for $1,839.25. Defendant appealed. ■

      Error assigned was iii admitting the policy in evidence.

      G. W. Geiser, with him F. E. Geiser, for appellant.

      E. J. Fox, with him J. W. Fox and A. N. XJlrich, for appellee.
   Per Curiam,

The main argument for the' appellant is intended to show error at the trial in admitting in evidence the policy of life insurance on which the action was brought, without the copy of the application of the insured which was attached to the policy when it was delivered. It appeared from an inspection of the papers that the copy attached to the policy was not a correct copy of the original application signed by the insured, because the answers to certain questions, relating to the subject-matter on which the defense was based, made by the insured in the original statement to the medical examiner were entirely omitted from the copy, or incorrectly given.

The statement made to the medical examiner was a part of the application: Morris v. State Mutual Life Assurance Co., 183 Pa. 563; Fisher v. Fidelity Mut. Life Association, 188 Pa. 1; and unless a correct copy of it was attached to the policy, it could not under the Act of May 11, 1881, P. L. 20, be considered a part of the policy or contract between the parties.

The defendant could not have put the incorrect copy in evidence, nor could he require the plaintiff to do so. The act is intended to protect the policy holder: Lenox v. Greenwich Ins. Co., 165 Pa. 575. It was passed in the interest of fair dealing, and its provisions should be strictly enforced: Pickett v. Pac. Mut. Life Ins. Co., 14 Pa. 79.

The judgment is affirmed.


text:
    Schweitzer’s Estate.

      Will — Probate—Issue devisavit vel non — Refusal of issue — Testamentary capacity — Undue influence — Evidence.
    An issue devisavit vel non is properly refused where the evidence shows that the deceased, an intelligent business man, of unusual strength of character, was at the time of the execution of his will physically weak, but with mind unimpaired, with knowledge of his estate, and what disposition he wished to make of it; that he dictated his will to a justice of the peace whom he had himself summoned; that two days later he read the will as prepared by the justice, expressed his approval, sent for a tenant, who with the justice witnessed the execution of the will; that the justice took the will with him and retained possession of it until it was delivered to the register of wills; and that the chief beneficiary, a daughter, was not shown to have had any knowledge of the contents of the will, nor had at any time exerted any influence to procure its making.
    Argued March 7, 1910.
    May 9, 1910:
    Appeal, No. 190, Jan. T., 1909, by Laura M. Clause, from decree of O. C. Northampton Co., refusing issue devisavit vel non in Estate of Robert T. Schweitzer, deceased.
    Before Fell, C. J., Brown, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Petition for issue devisavit vel non. Before Stewart, J.
    The opinion of the Supreme Court states the facts.

      Error assigned was refusing issue devisavit vel non.

      Calvin F. Smith, with him Thomas D. Danner and George F. P. Young, for appellant.

      Robert A. Stotz and W. E. Doster, for appellee.
   Per Curiam,

We find no merit in this appeal. It is from the refusal of an issue devisavit vel non asked for on the grounds of want of testamentary capacity and that the will was procured by undue influence. The learned judge of the orphans’ court found that none of the allegations of the petition were sustained and in his conclusion we fully concur. The testator was an intelligent business man of unusual strength of character. He had managed his business affairs until within a few months of his death, when he had a serious illness. At the time of the execution of his will he was physically weak, but his mind was unimpaired. He knew what estate he possessed and what disposition he wished to make of it. He sent fpr a justice of the peace and while alone with him dictated the will and stated his reasons for the disposition made. The will, prepared from the notes taken by the justice, was brought to him two days later. He read it, expressed his approval of it and sent for his tenant to act as one of the witnesses. He signed the will in the presence of the tenant and of the justice, who took the will with him and retained possession of it until it was delivered to the register of wills.

All of the facts stated, connected with the execution of the will, were established by the testimony of witnesses called by the contestant. The will was not under the circumstances an unnatural one, and there was no testimony that the chief beneficiary, a daughter of the testator, knew of its contents or had at any time exerted any influence to procure its making. Under all the testimony a verdict against the will could not be allowed to stand. This is the authoritative test in the hearing of an application for an issue: Wainwright’s App., 89 Pa. 220; Graham’s Est., 225 Pa. 314.

The decree is affirmed at the cost of the appellant.


text:
    Hostetter v. Cleaver, Appellant.

      Sheriff’s interpleader — Issue—Evidence—Case for jury.

    On the trial of a feigned issue to determine the ownership of personal property levied on bjr the sheriff, a, verdict and judgment for plaintiff will be sustained where the evidence although conflicting tended to show that the defendant in the writ under which the levy was made had been in possession of the property under an agreement of conditional sale in which it was provided that in the event of a default in the payments, the vendor might retake possession of the property, and that the vendor, who was the plaintiff in the issue, had retaken possession under the agreement, two days before the levy was made.
    Argued March 8, 1910.
    Appeal, No. 372, Jan. T., 1909, by defendants, from judgment of C. P. Franklin Co., Dec. T., 1908, No. 116, on verdict for plaintiff in case of Aaron Hostetter v. Minnie M. Cleaver and Edgar E. Lee.
    May 9, 1910:
    Before Fell, C. J., Brown, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Sheriff’s interpleader under the Act of May 26, 1897, P. L. 95. Before Gillan, P. J.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for plaintiff. Defendants appealed.

      Error assigned was in submitting the case to the jury.

      George J. Edwards, Jr., with him Sharpe & Elder, for appellants.

      Henry C. Niles, with him T. Z. Minehart and George E. Neff, for appellee. v
   Per Curiam,

This was a feigned issue to determine the ownership of personal property levied on by the sheriff. The defendant in the writ under which the levy was made had been in possession of the property under an agreement of conditional sale in which it was provided that in the event of a default in payments the vendor might retake possession of the property. The contention of the plaintiff in the issue, who was the vendor, was that he had retaken possession under the agreement, two days before the levy was made. Some things connected with the alleged retaking of possession of the property threw doubt upon the good faith of the contention made, and there was much that afterwards took place that is suggestive of a course of conduct shaped by after-discovered law, but the issue of fact was necessarily for the jury and there was no error in the manner of its submission.

The judgment is affirmed.


text:
    Ross Common Water Company v. Blue Mountain Consolidated Water Company, Appellant.

      Equity — Equity practice — Preliminary injunction — Appeal—Review.
    1. The established practice of the court on.an appeal from the granting or refusal of a preliminary injunction is to withhold any expression of opinion on the merits of the controversy until after final hearing •and deeree and to determine only whether on the facts developed an injunction should have been granted or refused.
    2. A preliminary injunction will issue against a water company to enjoin it from operating certain of its artesian wells, where it is definitely established that by the operation of these wells a large spring whose waters are used by its owner for commercial purposes, is rendered entirely dry.
    Argued March 9, 1910.
    Appeal, No. 380, Jan. T., 1909, by defendant, from decree of C. P. Monroe Co., Sept. T., 1909, No. 12, continuing preliminary injunction in case of Ross Common Water Company v. Blue Mountain Consolidated Water Company.
    Before Fell, C. J., Brown, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity for an injunction.
    On a motion to continue a preliminary ‘injunction, Staples, P. J., found the facts to be as follows:
    In the year 1883, Charles Brodhead became the owner of a tract of land in the township of Ross, county of Monroe and state of Pennsylvania. At the foot of the main range of the Blue Mountains, on the north side, a few feet above the Aquashicola creek, there has been for many years a spring of pure water. In the year 1889, the said Charles Brodhead commenced to take the water of this spring and sell it in the towns south of the Blue Mountains, and afterwards to carbonate it and make mineral waters, which sale and use have been continued without a break from that time to the present, the business having been taken over by lessees until it finally came into the hands of the Ross Common Water Company, incorporated under the laws of Pennsylvania, with a capital of originally $3,000, increased afterwards to $50,000,
    of which amount between $22,000 and $23,000 have been paid in; the said company having, in connection with the operation of its business, a large frame building, two and a half stories high, about forty by sixty feet in dimensions, fitted with the machinery necessary for the purposes of the manufacture of said waters as aforesaid; the said waters being shipped to New York, Philadelphia, Pittsburg and the leading towns within the county of Northampton. In connection with its manufacture, the persons interested did considerable advertising, both by circular and leaflets, photographs having been taken of the spring, transferred to the leaflets and these largely disseminated, until it has established a business of about 8,000 gallons per annum of pure water, and about 8,000 gallons of aerated and other mineral waters.
    The water of the said spring is confined by a stone wall built around it (with an overflow), between four and five feet wide and. about twenty-three inches in depth. No diminution was ever observed in the flow of the said spring until about November 5 or 6, when it was noticed to have gone down a couple of inches.
    In the year of 1903, the Blue Mountain Consolidated Water Company was incorporated under the laws of the state of Pennsylvania, in which were merged the following water companies, viz.: Nazareth Water Company, incorporated for the purpose of supplying water to the borough of Nazareth, county of Northampton, state of Pennsylvania; the Wind Gap Water Company, incorporated for the purpose of supplying water to the borough of Wind Gap, and the Pen Argyl Water Company, incorporated for the purpose of supplying water to the borough of Pen Argyl.
    Previous to the incorporation of this defendant company, and the merger of the said last three mentioned water companies, the Pen Argyl or the Wind Gap Water Company acquired the right to take from one of the streams of Ross township, on land within a short distance of the said Ross Common spring, water thereof to the amount of about 400,000 gallons per day, which was carried over the Blue Mountain to the said boroughs of Wind Gap and Pen Argyl; but, evidently being insufficient for the needs of the said boroughs before mentioned, which all lie on the south side of the said Blue Mountain, the said defendant company acquired a tract of land containing nine acres and eighty-four perches, and adjoining the land upon which is situate the said Ross Common spring.
    Upon this tract of land were erected a pumping station, a reservoir, etc., and there were sunk three artesian wells, known as No. I, No. 2 and No. 3; No. 1 being 240 feet from said Ross Common spring, No. 2 being 520 feet therefrom, and No. 3 being 380 feet therefrom; No. 1 being 187 feet in depth, No. 2, 227 feet in depth, and No. 3, 262 feet in depth; the diameter of the casing and pipe in No. 1 being, respectively, six and four inches, and in Nos. 2 and 3 being, respectively, ten inches and six inches. No. 1 was sunk in the fall of 1907 and winter of 1908, and commenced to be operated in the summer of 1908; No. 2 was sunk in the fall and winter of 1908 and 1909 and commenced to be operated in the spring of 1909; and No. 3 was sunk in the winter of 1909, and commenced to be operated in the summer of 1909.
    The water from these wells was pumped or forced out by compressed air, run into a reservoir and pumped over the Blue Mountain and then distributed by main pipes to the inhabitants of the boroughs of Wind Gap, Pen Argyl and Nazareth, and also to the inhabitants of three outlying townships, quarries and cement mills, for drinking and domestic purposes and also for manufacturing purposes, the amounts distributed to the persons, cement mills, etc., in the territory in proximity to Nazareth, but outside of its borough limits, being about equal to the amount used in the borough proper, it being stated by one of the officers of the company that about 400,000 gallons were needed for the borough and about 400,000 gallons for the territory in proximity thereto. There was also a large quantity of the water used in the territory in proximity to the borough of Wind Gap and Pen Argyl, but outside of the borough limits. If the water supply were shut off from the cement mills, slate quarries and the various customers outside the three boroughs, there would be sufficient surface water derived from the stream dammed in Ross township to supply the inhabitants of the said three towns, and the sinking of the wells and pumping the water from beneath the surface was due to the distributing water beyond the territory provided for by its articles of incorporation.
    After these wells were sunk and placed in operation, they were used continuously from that time until the hearing had in this case on an application for a preliminary injunction November 12, 1909, — -not all at the same time, but, as we remember the testimony, always at least two of them. The said Ross Common spring after November 5 or 6, continued to decrease in volume until it was completely dry, which was the condition of the same at the time of said preliminary hearing above stated; and in the immediate neighborhood of this spring where the ground was wet and where there were evidences of other springs, the ground was dry and these springs also.
    Upon one of the officers of the defendant company being notified of the condition of the Ross Common spring, that is to say, its decreasing in volume, pumping which had been going on at No. 1 and No. 2 was stopped at No. 1 and the waters in the spring came up almost at once, but the pumping continuing on No. 2, the spring shortly thereafter went entirely dry.
    At the suggestion of the court, the defendant company agreed to cease pumping from its said three wells, Nos. 1, 2 and 3, from six o’clock p. m., November 13, 1909, to six o’clock a. m., November 15, 1909, for the purpose of making a test as to whether or not the pumping from said wells did divert the water from the spring of the plaintiff company. Two persons were appointed by the court to make the tests every hour and also to see that no pumping was done. The result of this test was that the pumping of the said three wells ceased at six o’clock p. m. November 13:
    At 6.45 p. M. there was 1 inch of water m the spring
    “ 7.00 “ ££ were 1% inches c1 cc a

    ££ 8.00 “ “ “ 6M “ cc cc cc

    “ 9.00 “ “ “ HM “ u u ÍÍ

    “ 10.00 ££ ££ “ 15M “ u u a

    “ 11.00 “ “ ££ 18M “ u u u

    “ 12.00 “ “ ££ 20 u cc cc

    “ 1.00 a.m. “ ££ 21M “ cc cc cc

    “ 2.00 “ “ ££ 21 cc cc cc

    “ 3.00 ££ “ “ 22 cc cc cc

    “ 4.00 ££ ££ ££ 22)^ ££ cc cc cc

    ££ 5.00 ££ ££ ££ 23% ££ cc cc" cc

    ££ 6.00 ££ ££ ££ 23 cc cc cc

    at which time the water commenced to flow over the outlet of the spring and continued to do so, the spring keeping up in its volume.
    At 9.10 a. m. November 14 the pumping was started in well No. 3 and continued until six o’clock Monday morning, when it stood one-eighth of an inch higher than when the pumping was started at nine o’clock of the day previous, overflowing from said spring; and the ground in the immediate neighborhood was wet, showing that water was also issuing out of the ground in other places than in the spring. The water also commenced to flow voluntarily from well No. 2 about two or three o’clock a. m. on Sunday and continued to flow until the two men appointed for the purpose, left.
    On the afternoon of Monday, November 15, some time after two o’clock, the court permitted the defendant company, under voluntary arrangements made, to commence pumping No. 2, and by evening the spring had gone down until it was about dry. And it clearly appeared that the pumping from well No. 3 up to the present, has not in any way affected the flow of this spring, but that pumping from Nos. 1 and 2 together or separately, does affect it, and, if continued, dries it up. Under ordinary conditions, from the experience relative to the pumping of these wells, there would be no perceptible diminution of the flow of the water in the spring in question, but this fall has been extraordinarily dry and the effect of said pumping has at least drawn so heavily upon this body of water beneath the earth that it has affected the flow of water to this spring.
    The geological formation of the earth in this vicinity is a dipping of the rocks from the south and from the north, coming together about where the Aquashicola creek is and forming at this point a basin or valley. The Ross Common spring is on the side of the rock formation dipping north and the wells of the defendant company are on the side of the rock formation dipping south, and from the appearances there is a well-defined fracture in the rocks, whereby the waters below have found an easy outlet, and the source of the supply of the Ross Common spring is a water course under the surface of the earth along the fracture zone, and so plain, that taken in connection with the tests made and the chemical analysis of the water, it may be concluded as a fact, and not as a guess, that the supply of the water of said, spring does not come from the ordinary percolations through the earth, the water seeping its way through, but comes from a well-marked and easily discernible water course, and wells Nos. 1 and 2 are driven into the same water course and, when operated, pump the water in such quantities as to divert it in a dry time from the said Ross Common spring and deprive its lessees of the use thereof, materially injuring the business of the plaintiff company.

      Error assigned was decree continuing preliminary injunction.

      May 9, 1910:

      Edward, J. Fox, with him F. B. Holmes, for appellant.

      A. Mitchell Palmer, with him C. R. Bensinger, for appellee.
   Per Curiam,

This appeal is from a decree continuing a preliminary injunction restraining the defendant from operating its pumps in such a manner as to substantially decrease the flow of water into the plaintiff’s spring. The case was very fully considered by the learned judge of the common pleas and the injunction was carefully worded so as to preserve the status quo without unnecessarily restricting the defendant in the exercise of its franchises. The established practice of the court on an appeal from the granting or refusal of a preliminary injunction is to withhold any expression of opinion on the merits of the controversy until after final hearing and decree and to determine only whether on the facts developed an injunction should have been granted or refused.

The decree is affirmed at the cost of the appellant.


text:
    Everett, Appellant, v. Citizens’ Gas & Electric Company.

      Negligence — Electric light companies — Live wire — Contributory negligence — Evidence.
    In an action against an electric light company to recover damages for the death of plaintiS’s wife caused by an electric current passing through a wire clothesline with which the deceased came in contact, no recovery can be had where the evidence shows that the deceased or someone acting for her attached the clothesline in her yard to one of defendant’s poles and a guy wire in the alley back of the yard, and that a cross arm carrying an electric wire broke, causing the wire to come into contact with the guy wire, and thus communicating the current to the clothesline.
    Argued March 9, 1910.
    Appeal, No. 2, Jan. T., 1910, by plaintiff, from judgment of C. P. Monroe Co., Sept. T., 1908, No. 24, for defendant non obstante veredicto in case of William Henry Everett v. The Citizens’ Gas & Electric Company. Before Fell, C. J., Brown, Elkin, Stewart and Moschzisker, JJ. Affirmed.
    May 9, 1910:
    Trespass to recover damages for death of plaintiff’s wife. Before Heydt, P. J., specially presiding.
    The facts are stated in the opinion of the Supreme Court.
    Verdict for plaintiff for $4,750. Subsequently, the court entered judgment for defendant non obstante veredicto.

      Error assigned was in entering judgment for defendant non obstante veredicto.

      F. B. Holmes,-with him John B. Williams and W. A. Erdman, for appellant.

      A. Mitchell Palmer, with him C. R. Bensinger, for appellee.
   Per Curiam,

The 'plaintiff’s wife was killed by an electric current that passed from the defendant’s feed wire to a guy wire and thence to a wire clothesline in her yard, on which she was hanging clothes. Her house fronted on a borough street and her lot extended back to an alley ten feet wide. There was an electric light pole on the street near the division line between her property and that of an adjoining owner, and a pole in the alley close to the fence in the rear of her lot. A guy wire extended from the top of the electric light pole along the division line and was fastened to the pole in the alley seven feet from the ground; The plaintiff some years before the accident fastened one end of a wire clothesline to this pole and the other end of the wire to a grape arbor. The guy wire was afterwards removed and a new one put in its place. At the time of the accident the clothesline was wrapped around the guy wire and around the post. It did not appear who did this, but there was no evidence to warrant an inference that it was done by the defendant’s employees. A cross arm, carrying an electric wire broke, causing the wire to come into contact with the guy wire. The jury found the defendant negligent in not maintaining its line in a safe condition. Judgment was entered non obstante veredicto on the ground that the defendant’s negligence was not the proximate cause of the accident.

It is argued that in placing the pole in the alley and in extending the wire from it to the street, the defendant did something unlawful and was a trespasser. Of any unlawful act on its part, there was no evidence whatever. Presumably the pole was placed in the alley by permission of the borough authorities and if there was an invasion of the property rights of the deceased, it was made years before with her knowledge, without objection and her acquiescence or permission will be inferred. The guy wire was not in itself a danger to anyone even if it -became accidentally charged with electricity. The only danger in the situation was created by the deceased, or by someone acting for her, in making an unauthorized and manifestly unsafe use of the pole and guy wire.

The judgment is affirmed.


author: Mr. Justice Potter,

text:
    Cohen v. Philadelphia Rapid Transit Company, Appellant.

      Negligence — Street railways — Getting on car — Signal to start — Evidence ■ — Charge.
    1. In an action by a woman and her husband against a street railway company to recover damages for personal injuries to the wife, received while boarding a car, three witnesses whose credibility was unimpeached testified that the signal to start the ear was given, not by the conductor, but by an unauthorized passenger standing upon the back platform. The man himself who pulled the bell testified to the fact. To off-set this there was but the statement of the husband that the conductor rang the bell, which statement upon cross-examination was either withdrawn or rendered doubtful by his own admission. Held, that it was the duty of the trial judge to call the jury’s attention to the fact that the husband’s statement was unsupported and was contradicted by three credible witnesses, and to caution them against an arbitrary or capricious disregard of the weight of the evidence in favor of the defendant.
    2. Where an unauthorized passenger gives the signal to start a street car, and' a passenger in boarding the car is injured as the result of the starting of the car, the railway company is not liable for the injuries sustained.

      Evidence — Presumptions.
    3. Presumptions are only intended to supply the place of facts, and when the facts appear from the evidence, presumptions are never to be relied upon as against the facts.
    Argued March 21, 1910.
    Appeal, No. 121, Jan. T., 1909, by defendant, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1906, No. 3,022, on verdict for plaintiffs in case of Sarah Cohen by her husband and next friend, Abraham Cohen, and Abraham Cohen v. Philadelphia Rapid Transit Company.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Magill, J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for Sarah Cohen for $3,000, and for Abraham Cohen for $1,500. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      Thomas Learning, with him Owen Roberts, for appellant.
    The defendant is not liable for the consequences of the act of an unauthorized stranger in pulling the bell and starting the car, thus injuring a fellow passenger: O’Neil v. R. R. Co., 180 Mass. 576 (62 N. E. Repr. 983); McDonough v. R. R. Co., 95 App. Div. (N. Y.) 311; Moore v. Woonsocket St. Ry. Co., 27 R. I. 450 (63 Atl. Repr. 313); Krone v. Ry. Co., 71 S. W. Repr. 712; Columbus, etc., Ry. Co. v. Farrell, 31 Ind. 408.
    May 9, 1910:

      William T. Connor, with him John B. K. Scott, for appellees.
    Whether the giving of the signal to proceed, which caused the car to start, was the act of a stranger to the defendant or not, it still remained for the jury to say whether that act, if that of a third party, had not been acquiesced in or ratified by the defendant: McCurdy v. Traction Co., 15 Pa. Superior Ct. 29; North Chicago St. R. R. Co. v. Cook, 145 Ill. 551 (33 N. E. Repr. 958); Nichols v. Railroad Company, 168 Mass. 528 (47 N. E. Repr. 427); Devoy v. Transit Co., 192 Mo. 197 (91 S. W. Repr. 140).
   Opinion by

Mr. Justice Potter,

The plaintiffs in this case claim that Sarah Cohen was injured by the negligent starting of a trolley car, while she was in the act of boarding it. As the case was tried in the court below, it turned upon the determination of a single question of fact: Who gave the signal to start the car? If it was given by the conductor, as claimed by plaintiffs, the defendant company was liable for the resulting damages. If, as appeared from the evidence of the defendant, the signal was given by a person not in its employ, and without authority, then the defendant was not responsible for the result. It appears from the record that John McCausland testified that he was a passenger on the car in question and was standing on the rear platform. That when the car stopped at Sixth and Walnut streets, three or four men got on, and he pulled the bell and gave the signal for the car to start; and then he saw Mrs. Cohen and her husband come from the sidewalk, or from the back of the car, and that she attempted to get on, just about the time the car was starting. He said the conductor was inside the car, where he had been collecting fares, but was then on his way to the rear platform. William Johnson testified that he also was a passenger standing on the rear platform, and that when the car stopped at Sixth street, several persons got on, and that Mrs. Cohen and her husband came up after them, and just about the time the bell was pulled, Mrs. Cohen got hold of the car. He said the bell was pulled by a gentleman on the back platform, while the conductor was inside the car. The conductor also testified that he did not ring the bell to start the car, but that he saw who rang it, and that it was Mr. McCausland.

Against this straightforward and positive testimony of these three witnesses, the record shows that Abraham Cohen, one of the plaintiffs, testified in the first place, that the conductor rang the bell, but upon cross-examination he said the conductor was inside the car, and in answer to the question, “ You don’t know who rang the bell, do you?” he said, “Well, I could not say so.” The meaning of his reply is not entirely clear. The most natural construction of the statement is, that he meant he could not say who rang the bell; and this would be a virtual withdrawal of his statement that the conductor gave the signal, and would leave the claim of the plaintiff without any evidence to support it. But it is barely possible that he meant that he could not say that he did not know who rang the bell. The doubt should have been cleared up by further questioning. Were it not for this uncertainty, as to the sense in which his answer was to be understood, we would feel it our duty to sustain the third specification of error, and reverse the judgment without a new venire, and. enter judgment for the defendant because of the failure of the plaintiffs to offer any evidence sufficient to sustain the burden of proof which was upon them.

In answering the fifth point for charge, the trial judge very concisely said to the jury that they were to pass upon the weight of the evidence, and the interest of the parties. But the answer was evidently inadequate, and the jury were not sufficiently impressed by the statement. The case turned upon conflicting testimony, and the circumstances called for careful explanation to the jury of the difference between interested and disinterested testimony. In the interest of justice the court should have called the attention of the jury to the fact that the unsupported statement of the plaintiff, Abraham Cohen, was contradicted by the testimony of three credible witnesses, two of whom at least were entirely disinterested. The jury should have been cautioned against an arbitrary or capricious disregard of the weight of the evidence which, upon the point in question, was so strongly in favor of the defendant. We have more fully discussed this question of inadequate instructions, and cited some of our cases bearing thereon, in an opinion lately filed, in the case of Davies v. Rapid Transit Co., ante, p. 176.

In the argument of counsel for plaintiffs much has been said about the presumption of negligence against a carrier in case of injury to a passenger. For a discussion of the proper application of this rule, see the opinion of Mr. Justice Brown in Cline v. Pittsburg Rys. Co., 226 Pa. 586; and also the opinion of Chief Justice Fell in Blew v. Rapid Transit Co., 227 Pa. 319. There is no occasion here to invoke any presumption whatever, for the question at issue was a plain question of fact, concerning which there was clear and ample evidence. Presumptions are only intended to supply the place of facts, and when the facts appear from the evidence, presumptions are never to be relied upon as against the facts. In the present case, three witnesses whose credibility was unimpeached, testified that the signal to start the car was given, not by the conductor, but by an unauthorized passenger standing upon the back platform. The man himself who pulled the bell testified to the fact. To offset this clear testimony, there was only the statement of one of the plaintiffs, that the conductor rang the bell, which statement upon cross-examination was either withdrawn or rendered doubtful by his own admission. No verdict should have been permitted to stand upon such feeble testimony from a witness so vitally interested in the result.

The judgment is reversed, and would be here entered for the defendant, but for the ambiguity of the answer of the only witness for the plaintiffs who undertook to say who rang the bell. For that reason a venire facias de novo is awarded.


text:
    Watson, Appellant, v. Martin.

      Will — Construction—“Cash”—Real estate — Intestacy—Disinheriting heir.

    1. The word “cash” cannot be construed to include real estate in the absence of a manifest intent that it was used for that purpose.
    2. A testator having at his death money, shares of stock, promissory notes, household furniture and real estate made various pecuniary legacies and further directed: “If their is enny cash left over it goes to L.” Held, that L. was entitled after the payment of the pecuniary legacies to the balance of the personal estate, but not to the real estate.
    3. The rule that a testator is presumed to have intended not to die intestate as to any part of his estate is not of greater force than the rule that an heir is not to be disinherited except by express words or necessary implication.
    Argued March 21, 1910.
    Appeal, No. 402, Jan. T., 1909, by plaintiff, from judgment of C. P. No. 5, Phila. Co., Sept. T., 1909, No. 2,133, for defendant on case stated in suit of Lizzie M. Watson v. William J. Martin.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Case stated to determine marketable title to real estate.
    The facts are stated in the opinion of the Supreme Court.

      May 9, 1910:

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

      Harvey Gourley, for appellant.
    The plaintiff contends that under the will of Heston Watson, deceased, she is entitled to receive all of the cash left over from the sale of the real estate in question, and that she is, therefore, capable of giving a good and sufficient deed of conveyance therefor to the purchaser: Hofius v. Hofius, 92 Pa. 305; Price’s App., 169 Pa. 294; Carr’s Est., 13 Pa. C. C. Rep. 643; Jacob’s Est., 140 Pa. 268; Nevinson v. Lady Lennard, 34 Beavan, 487.

      Homer G. White, for appellee.
    The law favors the title of the heirs: Bender v. Dietrick, 7 W. & S. 284; Shaner v. Wilson, 207 Pa. 550; Grim’s App., 89 Pa. 333; Abel v. Abel, 201 Pa. 543; Lipman’s App., 30 Pa. 180; Howe’s App., 126 Pa. 233; Jarman on Wills, p. 498.
    The word “cash” is a stricter term than “money,” and usually will not include promissory notes, stock certificates, and the like: Jarman on Wills, star page 724, note (e); Schouler on Wills (3d ed.), sec. 505.
    Even “money” is usually construed strictly, unless it appears clearly from the context that the whole personal estate was intended to pass thereunder: Widener v. Beggs, 118 Pa. 374-379.
   Per Curiam,

This was a case stated to determine the title to real estate claimed by the appellant under the following clause of her uncle’s will: “If their is enny cash left over it goes to Lizzie M. Watson.” The testator’s heirs were children of his deceased brothers and sisters. His estate at the execution of his will and at his death ten months later consisted of about $1,400 in money, shares of stock sold by his executor for $5,450, notes amounting to $2,500, household furniture worth $50.00, and a dwelling house for which he paid $2,650. The pecuniary legacies, fifteen in number, amounted to $7,100. There was a balance of personal estate after the payment of legacies, debts and expenses of administration of $900, which was awarded to the appellant under the clause of the will above quoted. Her contention is that under this clause she is entitled to the dwelling house also.

The word “cash” cannot be construed to include real estate in the absence of a manifest intent that it was used for that purpose. We find no such intent in the will. No reference is made in it to the real estate, nor is there an expression of an intention to dispose of all the testator’s estate. The rule that a testator is presumed to have intended not to die intestate as to any part of his estate is not of greater force than the rule that an heir is not to be disinherited except by express words or necessary implication: Shaner v. Wilson, 207 Pa. 550.

The intent of a testator must be gathered from what he said. The search for his meaning is confined to his language: Woelpper’s App., 126 Pa. 562.

The'judgment is affirmed.


text:
    Dingee v. Wood, Appellant.

      Auditor — Findings of fact — Appeals—Review.
    1. Because of Ms better opportumty to judge of the intelligence and credibility of witnesses and then knowledge of the subject under investigation, an auditor’s finding of fact from disputed testimony is entitled to great weight and should not be set aside except for very substantial reasons, but it is never binding upon the court. Where the finding is an inference from established facts the court can reach a correct conclusion quite as readily as the auditor and less hesitation is felt in reversing his finding.
    2. A court’s finding of the value of services in an amount different from that found by an auditor will not be reversed where the court’s finding is based on inferences from facts proved or admitted which showed the relation of the parties, the interests involved, the character of services, and the circumstances under which they were rendered.

      Argued March 28, 1910.
    May 9, 1910:
    Appeal, No. 73, Jan. T., 1910, by defendant, from order of C. P. No. 4, Phila. Co., Dec. T., 1906, No. 1,307, dismissing exceptions to auditor’s report in case of John H. Dingee and John M. Wirgman v. Stuart Wood.
    Before Fell, C. J., Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Exceptions to report of Thomas Learning, Esq., auditor.
    The opinion of the Supreme Court states the case.

      Error assigned was order dismissing exceptions to auditor’s report.

      William A. Glasgow, Jr., with him Chester N. Farr, Jr., for appellant.

      M. Hampton Todd, for appellees.
   Per Curiam,

The auditor reported that the services of the appellant in the management of a large tract of land in which he and others were interested were worth $3,000 a year, but he rejected the claim for compensation because there was no agreement express or implied to pay for the services. Upon exceptions to the report the court found that the appellant was entitled to compensation and awarded him a lump sum calculated on the basis of $1,500 a year. The objection urged to the decree is that the compensation allowed was inadequate. The proposition advanced by the appellant that the court was without authority to set aside the finding of the auditor as to the value of the services cannot be sustained. Because of his better opportunity to judge of the intelligence and credibility of witnesses and their knowledge of the subject under investigation, an auditor’s finding of fact from disputed testimony is entitled to great weight and should not be set aside except for very substantial reasons, but it is never binding upon the court. Where the finding is an inference from established facts the court can reach a correct conclusion quite as readily as the auditor and less hesitation is felt in reversing his finding. The finding as to the value of the services of the appellant was not a distinct finding of a fact which depended on the credibility of witnesses and the effect to be given their testimony. It was in a measure at least an inference from facts proved or admitted, which showed the relation of the parties, the interests involved, the character of the services and the circumstances under which they were rendered. The court in a careful review of the whole case reached a conclusion differing from that of the auditor and we find no sufficient reason for reversing its decree.

The decree is affirmed at the cost of the appellant.


author: Mr. Justice Mestrezat,

text:
    Gilboy v. Duryea Borough, Appellant.

      Townships — Indebtedness — Judgment — Collateral attack — Act of March SI, 1864, P■ L-16%.

    1. Under the Act of March 31, 1864, P. L. 162, entitled, “An Act relating to the collection of district and township debts in the several counties of this commonwealth,” the confirmation by the court of quarter sessions of the report of a commissioner appointed to ascertain and marshal the indebtedness of the township is not a judgment conclusively binding upon the township as to the debts included in the report, and the township may thereafter show that prior to the confirmation of the report certain judgments included therein had been wholly or partially paid.
    2. The act of 1864 did not create a tribunal to determine the rights of parties under a contract or to ascertain the indebtedness due from* one party to another. It did not confer upon the court of quarter sessions the authority to inquire and determine whether a judgment obtained in a court of common pleas or before a justice of the peace had been paid or satisfied. It did not invest in a commissioner, appointed by the quarter sessions, authority to adjudicate controverted claims between a municipality and its creditors, nor did it make the report of ¡such commissioner, confirmed by the quarter sessions, a judgment having that effect.
    Argued April 11, 1910.
    Appeal, No. 29, Jan. T., 1910, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1900, No. 1,029, on verdict for plaintiff in case of J. B. Gilboy, Administrator of the Estate of M. F. Corcoran, deceased, v. Duryea Borough.
    Before Fell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Issue to determine the validity of a judgment. Before Ferris, J.
    At the trial defendant made the following offer:
    I propose to prove by the witness on the stand that he was attorney for Paul Urban, treasurer of Marcy township, in the year 1898, and that the sum of $3,000, license money to which the township was entitled that year, was paid by the treasurer of Luzerne county to Mr. Urban and by Mr. Urban paid to Mr. McAniff, and that under the direction of Paul Urban, treasurer, Mr. McAniff paid out the sum of $1,035 to M. F. Corcoran to apply on indebtedness owed to him by Marcy township, and allowed in the indebtedness proceedings before Thomas D. Shea, that proceeding that I have offered in evidence, No. 801, September Sessions, 1897.
    Plaintiff’s counsel: When was this payment?
    Defendant’s counsel: One payment by check, September 3, 1898, $500; and a few days later, between the third and tenth of September, another payment of $535, in the year 1898.
    Plaintiff’s counsel: This is objected to as being incompetent, irrelevant and immaterial, for the reason that the marshal’s report in which these claims were allowed, was not filed until September 29, 1898, the same day confirmed nisi and was not confirmed absolutely until March 11, 1899, and therefore could not have been in payment of any claims allowed by the marshal; that the present indebtedness for which this issue has been framed is res adjudicata.
    Defendant’s counsel: I would like to get in a little additional to my offer, if the court please, as follows: and to apply on any indebtedness of Marcy township to M. F. Corcoran.
    The Court: Objection sustained for the reason that in the opinion of the court the confirmation absolute of the commissioner’s report on March 11, 1899, as appears already in evidence, was an adjudication by this court, and a judgment of this court that at the date of said confirmation there still- remained due and therefore as yet unpaid the claims allowed to M. F. Corcoran by commissioner, and that to show a previous payment of those claims in whole or in part would be an attack upon that judgment of the court, which in our opinion could not be made collaterally, but would have to be made by a direct proceeding. Exception noted, bill sealed for the defendant. [1]
    The facts appear by the opinion of the Supreme Court.
    The trial judge directed a verdict for plaintiff.
    Verdict and judgment for plaintiff. Defendant appealed.

      Errors assigned among others were (1) ruling on evidence, quoting the bill of exceptions; (2) in giving binding instructions for plaintiff.

      John D. Farnham, with him M. H. Salsburg, for appellant.
    The confirmation of the commissioner’s report was not conclusive: Lehigh Coal & Nav. Co.’s App., 112 Pa. 360; Walker v. Phila., 195 Pa. 168; Chandler’s App., 100 Pa. 262.

      J. L. Lenahan, with him C. B. Lenahan, for appellee.
    The judgment of the court of March 11, 1899, being unappealed from, conclusively fixed the , liability of the defendant: Marsh v. Pier, 4 Rawle, 273; Lamb v. Miller, 18 Pa. 448; Coleman v. Coleman, 19 Pa. 100; Dyer’s App., 3 Grant, 326; Williams v. Row, 62 Pa. 118; Finley v. Hanbest, 30 Pa. 190.
    May 9, 1910:
   Opinion by

Mr. Justice Mestrezat,

If the learned trial judge had properly applied the rule announced in his charge, viz.: that a judgment of a court of competent jurisdiction cannot, in the absence of fraud or collusion, be attacked in a collateral proceeding, or if counsel had directed his attention to the reported decisions of his own and the appellate courts of the state, the error complained of would not have been committed and there would have been no occasion for this appeal.

M. F. Corcoran, plaintiff’s intestate, obtained seven judgments against Marcy township, Luzerne county, before a justice of the peace, and transcripts thereof were filed in the common pleas of that county. In each case the defendant took “a rule to show cause why an issue should not be awarded to try whether or not the above judgment has been paid or discharged.” The rule was made absolute and an issue was duly framed. The defendant claimed the judgments had been paid, and pleaded non assumpsit, payment and set-off, with leave, etc. On the trial of the case in the common pleas, it appeared that at September Sessions, 1897, the court of quarter sessions of Luzerne county appointed a commissioner “to ascertain and marshal the indebtedness of Marcy township (in which the defendant borough was then included) and report thereon.” The commissioner made his report, which was confirmed absolutely on March 11, 1899, and a mandamus was ordered to be issued directing the supervisors of the township to levy a special tax to pay the indebtedness of the township. The plaintiff’s judgments were presented to the commissioner and were a part of the indebtedness of the township reported by him. This proceeding was taken under the Act of March 31, 1864, P. L. 162, 2 Purd. (12th ed.) 1998, entitled, “An act relating to the collection of district and township debts in the several counties of this Commonwealth.” It was contended by the plaintiff and so held on the trial of the cause in the court below that the confirmation of the commissioner’s report was an adjudication by the. court of the amount due on the plaintiff’s judgments at that date, and the defendant could not show that prior to the confirmation of the report, the judgments had been wholly or partially paid. The learned judge held the confirmation of the commissioner’s report to be a. judgment of the quarter sessions which was conclusive as to the amount due the plaintiff on his claim against Marcy township (now the defendant borough), and “that to show a previous payment of those claims in whole or in part would be an attack upon that judgment of the court.” This ruling is assigned for error and raises the controlling question in the case.

The act of 1864 provides as follows: “When it shall be shown to the court of quarter sessions of any county of this state, that the debts due by any district or township in said county shall exceed the amount which supervisors or overseers may collect, in any year, by taxation, as at present regulated, or when the proper officers refuse to levy a tax for the purpose set forth in sec. 7 of the Act of February 28, 1835, P. L. 45, it shall and may be lawful for said court, after ascertaining by proper means the amount of indebtedness of any particular district or township, by a writ of mandamus, to direct the proper officers, by special taxation, to collect an amount sufficient to pay the same.” The learned judge of the court below misconstrued the purpose and effect of the statute, and it resulted in error in his rulings on the trial of the issue awarded to determine whether or not the judgments against the defendant had been paid.

The act of 1864 did not create a tribunal to determine the rights of parties under a contract or to ascertain the indebtedness due from one party to another. It did not confer upon the court of quarter sessions the authority to inquire and determine whether a judgment obtained in a court of common pleas or before a justice of peace had been paid or satisfied. It did not invest in a commissioner, appointed by the quarter sessions, authority to adjudicate controverted claims between a municipality and its creditor, nor did it make the report of such commissioner, confirmed by the quarter sessions, a judgment having that effect. The statute does not provide that creditors shall have notice of the proceeding or appear and present their claims to the commissioner, nor authorize an appeal by the creditor or municipality from the report of the commissioner as confirmed by the court. It does not provide that the parties may appear before the commissioner and produce their claims with the evidence to support them, nor that the report of the commissioner, confirmed by the court, shall be a judgment concluding the parties as to the indebtedness ascertained and reported by him against the municipality. It is apparent, therefore, that a commissioner, appointed under the act has no authority to pass upon or determine the merits of contested claims against the municipality. Constitutional and statutory tribunals have been created for that purpose, and there is nothing in the statute of 1864 which leads to the conclusion that it was enacted for the purpose of ousting their jurisdiction. The commissioner is not authorized to determine the existence or nonexistence of a contested claim presented against the municipality. On the contrary, the indebtedness to be reported by the commissioner is such as has been previously ascertained and fixed, as by judgment, the auditor’s settlement, or otherwise, and the decree of the quarter sessions is simply executionary: Lehigh Coal & Navigation Co.’s App., 112 Pa. 360; Hower’s App., 127 Pa. 134; Plains Township’s App., 21 Pa. Superior Ct. 68; Jenkins Twp. v. Borough of Yatesville, 1 Kulp, 190; In re Indebtedness of Wilkes-Barre Twp., 4 Kulp, 83; In re Lackawanna Twp., 15 York Leg. Rec. 202. The purpose of the statute was, as between the parties, not to authorize the quarter sessions to determine the validity or payment of a judgment entered in the common pleas or by a justice of the peace, nor to determine the validity or legality of a claim against the municipality, but to obtain the duly ascertained indebtedness of the municipality to enable the quarter sessions to compel its payment by the executionary process provided in the statute.

In determining the issue, whether the judgments obtained against the defendant had been paid or discharged, therefore, the report of the commissioner, confirmed by the court of quarter sessions, under the act of 1864, did not prevent the defendant from showing payment of the judgments" prior or subsequent to the confirmation of the report. It is settled law, and so recognized in the learned judge’s charge to the jury in this case, that the judgment of a court of competent jurisdiction is conclusive and, in the absence of fraud or collusion, cannot be impeached in a collateral proceeding. This principle applies to judgments obtained before a justice of the peace: Billings v. Russell, 23 Pa. 189; McDonald v. Simcox, 98 Pa. 619. It is apparent, therefore, that the commissioner appointed by the court of quarter sessions under the act of 1864 had no authority to inquire into and determine the question raised by the issue being tried in the present case, to wit, whether the judgments held by the plaintiff against the defendant borough had been paid or discharged. He was required to report the judgments as he found them on the record as an existing indebtedness. In Plains Township’s App., 206 Pa. 456, Mr. Justice Brown, speaking for the court, says (p. 557): “If, in the proceeding' (under act of 1864) before it, the court of quarter sessions had decided that the judgments against the township of Plains in the common pleas and on the dockets of the various justices of the peace were not conclusive of its indebtedness to the respective plaintiffs, there would have been the grossest irregularity on the face of the record. In the sessions these judgments from the common pleas and the courts not of record were, of course, conclusive.” It necessarily follows that as the commissioner was without authority to determine either the legality of the judgments or whether they had been paid in whole or in part, that on an issue in the common pleas to determine the question the report of the commissioner did not conclude the defendant borough nor prevent it showing the payment and discharge of the judgments. The first, second and third assignments of error must, therefore, be sustained.

The other assignments need not be considered. We may say, however, that the defendant has the right to show any payments on the judgments made to the plaintiff or to any other person duly authorized by him to receive payment. If Donnelly was the plaintiff’s counsel of record, authorized to collect and receive payment of the judgments, the fact that he did not account to his client for money paid him on the judgments would not prevent Donnelly from being a witness to show that payment was made to him, notwithstanding the death of his client. The contest here is not between Donnelly and the estate of his deceased client, but between the latter and the defendant borough and hence the borough may show by Donnelly any payments made by it to the plaintiff’s authorized agent or attorney.

The judgment is reversed with a venire facias de novo.


author: Mr. Justice Brown,

text:
    Waln’s Estate.

      Wills — Construction—Vested and contingent interests.

    When after a bequest in trust for his widow for life, testator directs property to be equally divided into as many shares as there may be parties interested therein, at their mother’s death — grandchildren to represent a deceased parent’s share — and creates spendthrift and separate use trusts with powers of appointment for seven of his children nominatim, followed by an absolute bequest to an eighth child and his heirs, whose share is to be increased by deductions from two others who are indebted to him, the eighth child takes a vested legacy, and if he dies during his mother’s lifetime, his share will go to his executor.
    Argued Feb. 1, 1910.
    Appeal, No. 7, Jan. T., 1910, by-Jacob S. Wain, Executor of S. Morris Wain, deceased, from decree of O. C. Montgomery Co., Oct. T., 1909, No. 33, dismissing exceptions to adjudication in Estate of Edward Wain, deceased.
    Before Brown, Mestrezat, Potter, El-kin and Stewart, JJ.
    Reversed.
    Exceptions to adjudication. Before Solly, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in affirming the adjudication.

      John Lewis Evans, for appellant.
    A remainder is always considered vested rather than contingent if the words of the will creating it are capable of such a construction: Long’s Est., 39 Pa. Superior Ct. 323.
    When the enjoyment of an entire fund is given in fractional parts, at succession periods which must eventually arrive, the distinction betwixt time annexed to payment, and time annexed to the gift, becomes unimportant and all the interests vest together: Provenchere’s App., 67 Pa. 463; Chew’s App., 37 Pa. 23; Thomman’s Est., 161 Pa. 444.

      Montgomery Evans and Rowland Evans, for appellee.
    Whether a legacy will be held vested or contingent, depends upon the question whether the condition is annexed merely to its payment or to the gift itself. If there is no separate antecedent gift independent of the direction and time for payment, the gift, being inferred from the direction to pay, the legacy is contingent.
    The above rule of construction is recognized in the text-books, and has always been the law in Pennsylvania: Moore v. Smith, 9 Watts, 403; McClure’s App., 72 Pa. 414; Appeal of Lumberman’s National Bank, 13 W. N. C. 191; Reichard’s App., 116 Pa. 232; McBride v. Smyth, 54 Pa. 245; Gilliland v. Bredin, 63 Pa. 393; Seibert’s App., 13 Pa. 501; Fairfax’s App., 103 Pa. 166; Coggins’ App., 124 Pa. 10; Raleigh’s Est., 206 Pa. 451; Middleton’s Est., 212 Pa. 119; Reiff’s App., 124 Pa. 145.
    May 16, 1910:
   Opinion by

Mr. Justice Brown,

Edward Wain died October 2, 1887. His will was executed in the May preceding his death, and the following are the material parts of it: “I give, devise and bequeath all my estate, real, and personal, which I own, or may acquire, and whether vested, or contingent, and held in severalty, or in common, to my esteemed friend, Richard W. Clay, Esq., upon the special trusts, and conditions following, viz., to collect the rents, issues, profits, and income thereof, and after deducting the legitimate expenses of managing the same, to pay over, from time to time, the net receipts to my widow, Ellen C. Wain, for her own use, comfort, and disposal, during her life. And at, and after the termination of the said life estate, then in trust, to select three disinterested gentlemen, to part, and divide the said estate, into as many shares, as there may be, parties interested therein, at their mother’s death, the shares to be of as nearly equal value, as possible, and the child or children of any deceased child to represent the deceased parent’s share.

“And on such division being made, then by amicable arrangement among themselves, or by lot, to transfer, and convey, and appropriate, to each party a or one share on the special trusts following, viz.: To retain the shares of my daughters, Sally M. Wain, Ellen C. Harrison, wife of Charles C. Harrison; Esther N. A. Graham, wife of Peter M. Graham, and Rebecca McM. Wain, to keep the same judiciously invested, to collect the rents, issues, profits and income thereof, and to pay the same after deducting the legal expenses to each of my said daughters, for their respective separate uses, benefits, and disposal, and free from the debts, interference, or control, of any husband, or any one else, during their respective lives and on the termination of their several life estates, then to convey and assign, each one's share, to such person or persons, on such terms, estates, limitations & conditions, etc., as they may respectively by will direct, limit and appoint, and on failure to so appoint, then to their respective right heirs.

“And as to the shares of my sons Jacob S. and Edward Wain, Junior (subject to the deductions being first made from each, to be added to the share of my son S. Morris Wain, as specified hereinafter) to retain the said shares in trust for their exclusive uses benefits comfort and maintenance, free from and not liable for the debts, legal proceedings, judgments, or executions of any creditor during their respective lives, with like power of appointment by will, as is hereby conferred on my daughters shares, and on failure to so appoint, then to their respective right heirs.

“And as to the share of my son Nicholas Wain, to retain the same, in trust, for the same uses, limitations, and conditions, and power, as are conferred on the shares of my sons Jacob S. and Edward, except that his share, is to be exempt from any deduction or contribution, like theirs, to, and in favor of the share of my son, S. Morris Wain.

“And as my desire is, to divide my estate, as equally as possible among my children, and to let 'bye-gones be bye-gones,’ and as my son S. Morris Wain, with affectionate generosity, and in noble self-sacrifice loaned to his brothers Jacob and Edward, who were then partners in the mercantile firm of S. Morris Wain & Co. at the time of 1883 & 1884, when the disastrous bankruptcy overwhelmed that firm, the whole of his then fortune as realized from the legacies of his deceased uncle, the late S. Morris Wain, which loan amounted to Forty nine thousand, six hundred and thirty one dollars ($49,631) none of which has been repaid, and for which sum I obtained a Judgment for him, in the Court of Common Pleas for Phila. No. 1, to March Term, 1885, No. 821, I hereby will and direct that a sum equal to fifty per cent of the value of each share of my sons Jacob S. and Edward, be deducted from each before conveying or transferring, in trust for them, as aforesaid, their respective shares, which deductions of 50 per cent from each, I will to be added to my son, S. Morris’ share, hoping that my estate may eventually prove valuable enough with the said deduction to repay to him the foregoing indebtedness but without any interest, and not entirely absorb the shares of my sons Jacob 8. and Edward.

. “Of course it is my will that should either of my sons Jacob or Edward, pay or satisfy, in whole, or in part, at, or before, or after the taking effect of this will, the said indebtedness that then a credit or release pro tanto be made, and the respective deductions, as aforesaid, be reduced accordingly. And as to the share of my son S. Morris Wain, so increased by the foregoing additions to convey, and assign, the same, absolutely to him, and his heirs forever.”

Ellen C. Wain, the widow, died May 13, 1909, and all of the testator’s children except S. Morris survived her. He died in 1888, unmarried and without issue, and the executor of his will claims a one-eighth interest in his father’s estate, augmented by fifty per cent of the shares of Jacob S. and Edward. This claim was disallowed by the court below on the ground that the interests passing to the testator’s children were not vested, but contingent upon their surviving their mother, and, as S. Morris Wain died before her, nothing passed from his father’s estate to that of his own. The view of the court below, that the interests of the children were contingent, was based upon the direction of the testator that at the termination of the life estate of his wife the trustee should select three disinterested gentlemen to part and divide the estate into as many shares as there might be parties interested therein at his widow’s death, the shares to be of as nearly equal value as possible and the child or children of any deceased child to represent the deceased parent’s share. But the testator did not stop here, and from the immediately succeeding clauses there is a clearly expressed intention that the interests of his children in his estate should vest at the time of his death, the enjoyment only being postponed until the death of his wife. “There are no arbitrary or unbending rules in the construction of the words of a will. No two wills are in all respects alike. . . . The cardinal- canon still holds good, that the intention of the testator of each will separately is to be gathered from its own four corners:” Provenchere’s App., 67 Pa. 463. Applying this canon to the will before us, there can be no doubt from its own words how it should be interpreted, and we need enter into no discussion of the preference of the law for a vested rather than a contingent remainder.

When the testator wrote his will and at the time of his death he had eight children, four sons and four daughters. After the direction that his estate should be divided he directed that the trustee should retain a share for each of his four daughters, naming them, for her separate use during life, with a power of appointment over it by will. Three shares of the estate are directed to be held in trust for Jacob S., Edward and Nicholas, fifty per cent of the shares of the'first two to be added to that given to S. Morris, for the reason stated by the testator. The eighth share was to be transferred by the trustee to S. Morris absolutely, to him and his heirs forever. The testator was definite as to the method of division, though somewhat indefinite as to who were to participate, as he describes the participants as “parties interested therein;” but no indefinite words were used when he proceeded to say who should each receive one-eighth of his estate. Enumerating his eight children by name, he gives to each one of them a share, to be held in trust for seven of them and to be given to the eighth absolutely at the termination of the life estate of their mother. Nothing could be plainer than the intention of the testator that one-half of each share given to Jacob S. and Edward should be paid to S. Morris, to reimburse him for what he had paid for them. The words of the will are that there shall be deducted from “each share” of the two sons, Jacob S. and Edward, one-half, which is to be added to the share of S. Morris, and the direction is that if, after the will took effect, that is, after the death of the testator, Jacob or Edward should pay or satisfy, in whole or in part, the said indebtedness to S. Morris, a credit or release pro tanto should be made and “the respective deductions” from their shares should “be reduced accordingly.” If payments had been made by Jacob and Edward after the will had gone into effect, how could there have been reductions from the deductions directed to be made from their “shares” unless they had shares? The manifest intention of the testator of absolute reimbursements to S. Morris would have been defeated by the construction given to his will by the court below if Jacob and Edward, or either of them, had died during the lifetime of the widow, for in such event nothing could have been taken from shares which passed to their children and added to that of S. Morris if he had survived his mother. The testator declares his intention to be “to divide my estate, as equally as possible among my children,” and from the whole will it is most clear that each child took a vested interest at his death. The clause upon which the court below relied, standing alone, is to be read as giving a vested interest to each child, subject to be divested only by death during the lifetime of the widow and leaving children. Only one, S. Morris, did die, and he left no children. Again, the law presumes that the testator did not contemplate possible intestacy as to his estate after the death of his widow. The presumption is just the opposite, and yet the construction placéd upon the will by the court below would have resulted in intestacy if his sons and daughters had all died during the lifetime of the widow without leaving children; The decree of the court below is reversed, and the record remitted, that distribution may be made in accordance with the view herein expressed, the costs to be paid out of the fund in the hands of the trustee.


text:
    Levin, Appellant, v. Philadelphia & Reading Railroad Company.

      Negligence — Railroads—Passenger—Presumption of negligence.

    1. In an action by a passenger against a railroad company to recover damages for personal injuries where nothing happens to the car on which the plaintiff was riding and there is no collision nor breakage of anything there is no presumption of negligence.
    2. In an action against a railroad company by a woman to recover damages for personal injuries, binding instructions for defendant are proper where plaintiff testified that when the conductor announced the station and she tried to put her foot out, “one train struck the other train and I fell," and plaintiff's husband testified that in one second one car pulled another, and the evidence shows that there was no injury to the car on which the plaintiff was riding.
    Argued March 23, 1910.
    Appeal, No. 84, Jan. T., 1910, by plaintiffs, from judgment of C. P. No. 2, Phila. Co., March T., 1907, No. 3,288, on verdict for defendant in case of Abraham Levin and Esther, his wife, v. Philadelphia & Reading Railroad Company.
    Before Beown, Mesteezat, Pottee, Elkin and Moschziskee, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Sulzbeegee, P. J.
    At the trial it appeared that the plaintiff was injured on March 9, 1907, at Woodmont station on defendant’s railroad. The plaintiff testified that she was seated in the third seat from the door when the conductor “called Woodmont station and me sitting in the same place, and I was sitting on the same place when the train stopped and the conductor called Woodmont station, and my husband arose to go out and 1 tried to put one foot — one foot, and one train struck the other train and I fell.” The plaintiff’s husband described the accident as follows:
    May 16, 1910:
    “A. I went to Ninth and Spring Garden to go to Woodmont station with my brother, on a farm. When it came to Woodmont station, the conductor called out, ‘Woodmont station here,’ and the train stops. I have a graphophone in my hand and I took the graphophone and I called my wife, ‘Come down. Here is Woodmont station,’ and I stand up and wants to go and the train starts to go and stops again, and pulls one car another car. Q. What? A. One car pulls another car when she stops again, and I fall to the chair, and when I looked in the back side for my wife — she was three chairs in the back, I see she was on the floor in the back side and crying. I go to the conductor and we put her off and take her outside.”
    The court gave binding instructions for defendant.
    Verdict and judgment for defendant. Plaintiffs appealed.

      Error assigned was in giving binding instructions for defendant.

      Harry G. Sundheim, for appellants.

      Wm. Clarke Mason, for appellee.
   Per Curiam,

Nothing happened to the car on which the plaintiffs were riding. There was no injury to it, no collision nor breakage of anything. There was, therefore, no presumption of negligence: Herstine v. Lehigh Valley Railroad Co., 151 Pa. 244; Cline v. Pittsburg Railways Co., 226 Pa. 586. Whether the negligence set out in plaintiffs’ statement as the cause of the injuries sustained by Esther Levin was proven, or whether the same were due to a jolt of the car incident to the stopping of the train at the station, would, under the testimony of the injured plaintiff and her husband, have been a mere guess by the jury. She said that when the conductor announced the station and she tried to put her foot out, “one train struck the other train and I fell.” His testimony was that in one second one car pulled another. As the jury could not intelligently have found from the case as presented by the plaintiffs that the defendant was negligent, the judgment on the verdict directed in its favor is affirmed.


text:
    Ricketts, Appellant, v. Capwell.

      Equity — Specific performance — Findings of fact.

    Where on a bill in equity to enforce specific performance of an alleged parol agreement in relation to land, the answer denies all of the material allegations of the bill, and the court finds that the plaintiff's proof is far from being clear and convincing, and such finding appears to be fully warranted by the evidence, the Supreme Court will not reverse a decree dismissing the bill.
    Argued April 11, 1910.
    Appeal, No. 242, Jan. T., 1909, by plaintiff, from decree of C. P. Luzerne Co., Oct. T., 1905, No. 12, dismissing bill in equity in case of Agib Ricketts v. R. U. Capwell and Benton Coleman, Executors of Isaac B. Felts, deceased.
    Before Fell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Bill in equity for specific performance. Before Evans, P. J., specially presiding.
    The opinion of the Supreme Court states the case.

      Error assigned was decree dismissing the bill.

      May 16, 1910:

      Wm. S. McLean, with him Alexander Ricketts, for appellant.

      J. M. Walker, for appellees.
   Per Curiam,

The object of the bill in this case was to enforce by a decree for specific performance, an alleged parol agreement in relation to land. The answer contained a distinct denial of all of the material allegations of the bill and the court found that the testimony produced by the plaintiff upon the controlling question of fact in the case was far from being clear and convincing. This finding appears to have been fully warranted by the evidence and it will not be disturbed.

The decree dismissing the bill is affirmed at the cost of the appellant.