author: Mr. Justice Potter,

text:
    Smith v. Piper, Appellant.

      Wills — Construction—“Die without issue” — Presumptions—Act of July 9,1897, P. L. 218 — Conditional limitations — Fee cut down by subsequent clauses.

    1. The rule of law prior to the Act of July 9, 1897, P. L. 213, was that iu the absence of any indication in the will to the contrary the words “die without issue” imported an indefinite failure of issue, and the effect of the act is to change that rule so that in the absence of other indications in the will the words are to mean a definite failure of issue in the lifetime or at the death of the person intended.
    2. A will must be construed as an entirety, so that, if possible, every part of it may take effect. Hence, the independent meaning of one provision must often be modified by reading it in connection with others. If a testator in one part of his will give to a person an estate of inheritance of lands, or an absolute interest in personalty, and in subsequent passages unequivocally shows that he means the devisee or legatee to take a lesser interest only, the prior gift is restricted accordingly. Subsequent provisions will not avail to take from an estate previously given qualities that the law regards as inseparable from it, as, for example, alienability; but they are operative to define the estate given, and to show that what without them might be a fee was intended to be a lesser right.
    3. A testator after devising to his two nieces an undivided one-half interest in certain real estate “unto them, their heirs and assigns forever” provided that “The above devises of real estate to ... . my nieces .... are to become absolute to them and their heirs whenever the said persons have married and have issue born, but should .... my said nieces .... die without lawful issue, I direct that the above real estate .... shall descend to and vest in the heirs of ” a third party; “it being my desire that should either” of my nieces “die without lawful issue, the property which I have devised to them or cither of them, should go to the heirs of the above named” third party. Held, (1) that the words “die without lawful issue” must be construed to mean a failure of issue in the lifetime of the nieces; (2) that the nieces took a conditional fee with a limitation over, by way of an executory devise, and so long as they remained unmarried and without issue they would not have an absolute fee and could not, therefore, convey a fee simple title.
    Submitted March 13, 1911.
    Appeal, No. 196, Oct. T., 1910, by defendant, from judgment of C. P. Armstrong Co., Dec. T., 1910, No. 2, for plaintiffs on case stated in suit of Laura Smith and Clara Smith v. W. H. H. Piper.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart, and Moschzisker, JJ.
    Reversed.
    Case stated to determine the marketable title to real estate. Before Patton, P. J., without a jury.
    From the case stated it appeared that the plaintiffs claimed title in fee simple under the will of J. R. Smith, deceased, and that they contracted to sell such an interest in the land to the defendant. The material portions of the will are set forth in the opinion of the Supreme Court.
    April 10, 1911:
    The court entered judgment for plaintiffs on case stated. Defendant appealed.

      Error assigned was the judgment of the court.

      Floy C. Jones and Harry A. Heilman, for appellant.
    —The Act of July 9, 1897, P. L. 213, changed the presumption which formerly was in favor of an indefinite failure of issue, and substituted therefor a statutory presumption that in the absence of words indicating a contrary intent, a definite failure is to be presumed: Lewis v. Link-Belt Co., 222 Pr. 139; Daniels’ Est., 27 Pa. Superior Ct. 358.

      J. H. Painter for appellees,
    cited: Siegwarth’s Est., 33 Pa. Superior Ct. 622; Ault v. Karch, 220 Pa. 366; Mayer v. Walker, 214 Pa. 440; Robinson v. Jones, 222 Pa. 56.
   Opinion by'

Mr. Justice Potter,

This case was argued early in the present term. An opinion upon the questions presented was prepared and handed down by the present writer. But in construing the clauses of the will involved, through inadvertence, the effect of the Act of Assembly of July 9, 1897, P. L. 213, was not considered. The purpose of that act, as set forth in the title, is to declare the construction of words in a deed, will or other instrument, importing a failure of issue. As counsel had not cited the statute, nor referred to it in their briefs of argument, the case was, at the suggestion of the court, set down for reargument, and the questions involved have been carefully reconsidered.

It appears from the record that in the seventh clause of his will, J. R. Smith devised to his nieces, Laura Smith and Clara Smith, an undivided one-half interest in the two houses and lots on Grant street, in the borough of Manorville, Armstrong county, Pennsylvania/ known as the Smith-Piper property, unto them, their heirs and assigns forever. In a subsequent clause of the will, the eleventh, he further provided that “The above devises of real estate to my grandson, R. P. Foltz, and to my nieces Laura and Clara Smith, are to become absolute to them and their heirs whenever the said persons have married and have issue born, but should either my grandson, R. P. Foltz, or my said nieces, Laura Smith and Clara Smith, die without lawful issue, I direct that the above estate real so bequeathed to them shall descend to and vest in the heirs of Joseph Fichthorn, Rosswell Fichthorn and Louis Fichthorn, M. D., share and share alike; that is to say, to the heirs of each of the above named, the undivided one third part, it being my desire that should either of the above devisees, to wit, R. P. Foltz, Laura Smith and Clara Smith, die without lawful issue, the property which I have devised to them or either of them, should go to the heirs of the above named Joseph, Rosswell and Louis Fichthorn.”

In determining whether the limitation over was to take effect upon a definite or indefinite failure of issue in the first takers, the words to be considered are “but should .... my nieces, Laura Smith and Clara Smith, die without lawful issue,” etc. These words and their equivalents have been adjudged again and again to import a general and indefinite failure of issue. See Vaughan v. Dickes, 20 Pa. 509, where Woodward, J., cites Ch. Kent, 4 Com. 276, as authority for the statement that the English cases have been uniform “From the time of the year-books down to the present day, in the recognition of the rule of law, that a devise in fee with a remainder over, if the devisee dies without issue or heirs of the body, is a fee cut down to an estate tail, and the limitation over is void by way of executory devise as being too remote, and founded on an indefinite failure of issue. Wherever an executory devise is limited to take effect after a dying without heirs or without issue, subject to no other restriction, the limitation is void, for the policy of our law will not suffer property to be tied up and rendered unalienable in expectation of such remote contingencies: Fearne on Remainders, 445.” And in the case of Ray v. Alexander, 146 Pa. 242, where the devise over was made to depend upon the death of testator’s daughter Elizabeth, “without leaving lawful issue,” this court said that the phrase used, “according to the established interpretation of such expressions in a will, means a general, indefinite failure of issue, and not a failure at the death of the first taker.”

But this rule of law was changed by the Act of July 9, 1897, P. L. 213, which provides in the first section, “that in any gift, grant, devise or bequest of real or personal estate, the words ‘die without issue,’ or ‘die without leaving issue,’ or ‘have no issue,’ or any other words which may import either a want or failure of issue of any person in his lifetime, or at the time of his death, or an indefinite failure of his issue, shall be construed to mean a want or failure of issue in the lifetime or at the death of such person, and not indefinite failure of his issue, unless a contrary intention shall appear by the deed, will or other instrument in which such gift, grant, devise or bequest is made or contained.” The constitutionality of this act was upheld in Dilworth v. Land Company, 219 Pa. 527, where the intention and effect of the statute was elaborately considered by Judge Shaper, in an opinion adopted by this court. While admitting that the phraseology of the act is peculiar and in a sense ambiguous, it was there said (p. 531): “The act, therefore, appears to mean that if words are used which in themselves leave it doubtful whether the failure of issue intended is definite or indefinite, they shall mean a definite failure of issue, unless something else in the instrument shows that they are not so intended. The words of the will in this case, ‘in default of issue of my said daughter,’ are in themselves applicable to a definite or to an indefinite failure of issue and should be applied to either as the intention of the testator should appear from the will. They are, therefore, words which in the language of the act may import either a failure of issue of the daughter at her death or an indefinite failure of her issue. The rule of law prior to the act was that in the absence of any indication in the will to the contrary these words imported an indefinite failure of issue, and the effect of the act is to change that rule so that in the absence of other indications in the will the words are to mean a definite failure of issue.” And in Lewis v. Link-Belt Co., 222 Pa. 139, 141, Mr, Chief Justice Mitchell said: “It is notable that an act making so serious a change in the previous law has received so little attention as the Act of July 9, 1897, P. L. 213. It entirely changes the presumption which formerly was in favor of an indefinite failure of issue and substitutes a statutory presumption that, in the absence of words indicating contrary intent, a definite failure is to be presumed. . . . This is in accordance with the actual intent in the vast majority of cases and is a legislative step in the direction in which this court has been tending, to restore to its proper place the cardinal rule that actual intent is to prevail.”

In the present case, as the testator directed that should his nieces Laura Smith and Clara Smith “die without lawful issue,” the property devised to them, or either of them, should go elsewhere, we must, under the plain terms of the act, construe the phrase “without lawful issue,” to mean a failure of issue in the lifetime of Laura Smith and Clara Smith. That is, as a definite failure of issue, the precise time fixed by the will for the failure of issue being at the date of the death of Laura Smith and Clara Smith. They cannot, therefore, be regarded as taking an estate tail, enlarged to a fee simple. As the limitation over was to take effect on the failure of issue within a given time, “then the limitation over will not raise an estate in tail by implication in the prior taker, but he will have a life estate with the limitation over of a springing interest or a fee with a conditional limitation over, as the case may be:” Smith on Executory Interests, 301. The devisees here take a fee with a conditional limitation over, by way of an executory devise to the Fichthorn heirs. So long as they remain unmarried and without issue, they will not have an absolute fee, and cannot therefore convey a fee simple.

But another question is raised by this appeal. The court below held that in the seventh clause, the testator gave to his nieces an estate in fee simple which vested in them immediately upon the death of testator, and that this estate was not postponed by the language of the subsequent clause, which provided that the devises should become absolute whenever the devisees should marry and have issue born; and that if they should die without issue, the real estate so bequeathed should go elsewhere. Was the court below justified in this conclusion? We think not. In order to ascertain the intention of the testator, the whole will must be read, and if the intention to restrict a gift is clear, the restriction must be given effect. Thus, in Sheets’ Est., 52 Pa. 257, Mr. Justice Strong said: “A will must be construed as an entirety, so that, if possible, every part of it may take effect. Hence, the independent meaning of one provision must often be modified by reading it in connection with others. . . No principle is better settled than that if a testator in one part of his will give to a person an estate of inheritance of lands, or an absolute interest in personalty, and in subsequent passages unequivocally .shows that he means the devisee or legatee to take a lesser interest only, the prior gift is restricted accordingly. Subsequent provisions will not avail to take from an estate previously given qualities that the law regards as inseparable from it, as, for example, alienability; but they are operative to define the estate given, and to show that what without them might be a fee, was intended to be a lesser right.”

In Ulrich v. Merkel, 81 Pa. 332, there was a devise of a farm to testator’s son and his heirs. In a subsequent clause of the will testator provided that none' of his children should have a right to sell or assign the land or property devised to them, nor to incumber it with debts or liens, “but the lands shall remain free for their children or heirs; and they, my said children, shall have the use, income and profits of the said land and farms during their lifetime.” By another clause he gave his children power to dispose by will of the lands devised to them. It was held that the son took a life estate only. This was followed, and the reasons for its affirmance were set forth at length, in Urich’s Appeal, 86 Pa. 386, where the syllabus reads: “Although a fee is given in the first part of a will, it may be restrained by subsequent words so as to convert it into a life estate.” And in Livezey’s App., 106 Pa. 201, Ulrich v. Merkel, 81 Pa. 332, was again expressly approved and followed. In the comparatively late case of Shower’s Est., 211 Pa. 297, our Brother Mestrezat. said: “It is settled by our cases that an estate of inheritance in real estate or an absolute interest in personalty given in a will may be reduced to a lesser estate if the subsequent language of the instrument unequivocally shows that such was the intention of the testator.”

In 1 Jarman on Wills (6th Eng. ed., 1910), 565, 566, the principle is thus stated: “If a testator in one part of his will gives to a person an estate of inheritance in lands, or an absolute interest in personalty, and in subsequent passages unequivocally shows that he means the devisee or legatee to take a life interest only, the prior gift is restricted accordingly. It must be borne in mind, however, that the rule only applies where the later gift shows with reasonable certainty that the testator did not mean the prior gift to take effect according to its terms.”

In the present case, can it be said that there is any lack of clearness in the expressed intention of the testator, that these devisees should not have an absolute title to the real estate in question, until they married and had issue born? No one can look at clause eleven without being satisfied that such was testator’s purpose. Not once, but twice, and yet a third time, does he give expression to his intention in this respect. After directing that the Smiths should have the absolute title, whenever they married and had'issue,'he further gives positive direction that should they die without lawful issue, the real estate shall descend to and vest in the heirs of the Fichthorns. And again does he repeat his direction, so that there shall be 'no misunderstanding of his meaning, in these words: “It being my desire that should either of the above devisees die without lawful issue, the property which I have devised to them or either of them, should go to the heirs” of the Fichthorns. Reading the two sections of the will together, no inference can fairly be drawn from the language of the testator, than that he intended to give a smaller estate than the meaning of the words of the gift, standing alone, as set forth in sec. 7, would import. That is, he makes it appear clearly that the estate he is giving is a conditional fee, not to become absolute until such time as the devisees marry and have issue born. The language of sec. 11 is, we take it, the defining of the estate given, and is not the imposing of a restraint upon an estate already given.

Being of the opinion that the plaintiffs are not the owners of a fee simple in the property in question, the assignment of error is sustained; and the judgment of the court below is reversed, and judgment is hereby entered for defendant.


source: Caselaw Access Project

author: Mr. Justice Mestrezat,

license: Public Domain

text:
    McNees v. Sims, Appellant.

      Trial — Charge—Points for charge.

    1. The court commits clear error in declining points submitted for charge on the ground that the instruction prayed for was covered in the general charge, where the legal propositions contained in the points were correct, and the answers gave no'clear expression of the court's views as to the various propositions contained in the several points.

      Negligence — Master and servant — Inexperienced youth — Duty to instruct — Private railroad.

      2. In an action to recover damages for personal injuries the case is for the jury where there is evidence to show that the plaintiff, an inexperienced country youth sixteen years of age who had been working only a month for the defendant, was directed two or three days prior to the accident, to sand a rough, temporary track which he did by walking along the track in front of the donkey engine and dropping the sand from a can which he held in his hand, that the track ran through a cut, the sides of which were three or four feet high, that on the day of the accident by order of the engineer under whom ho was working by direction of the foreman, he got on the side of the bumper in front of the engine to sand the tracks, that to secure himself, he put his left foot around the end of the bumper, that the train started and after it had gone 150 feet there was a jolt and his left foot was caught between the bank and the end of the bumper, and plaintiff testifies that he received no instructions how to sand the rails while sitting on the bumper, or how to avoid the danger incident to the service.
    Argued March 22, 1911.
    Appeal, No. 15, Jan. T., 1911, by defendants, from judgment of C. P. No. 5, Phila. Co., March T., 1908, No. 5,284, on verdict for plaintiff in case of Stanley MeNees, by his next friend and guardian, Carrie Hart, v. Charles A. Sims et al., trading as Charles A. Sims and Company.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Ralston, J.
    The opinion of the Supreme Court states the case.
    Verdict for plaintiff for $8,000 and judgment thereon. Defendant appealed.

      Errors assigned were (1-12) answers to points, and (13) refusal of judgment for defendant non obstante veredicto.

      A. L. Moise, with him S. D. Matlack, S. H. Alleman and W. W. Smithers, for appellants.
    There was no evidential connection between the accident and any negligent act of the defendant: West Mahanoy Twp. v. Watson, 112 Pa. 574; Behling v. Pipe Lines, 160 Pa. 359; South Side Pass. Ry. Co. v. Trich, 117 Pa. 390; Douglass v. R. R. Co., 209 Pa. 128.
    There is no duty upon an employer to provide a place for work which is absolutely safe: Peterson v. R. R. Co., 217 Pa. 401; King v. McClure Co., 222 Pa. 625; Coleman v. Keenan, 223 Pa. 29; Eddleman v. Penna. Co., 223 Pa. 318; Schneider v. Quartz Co., 220 Pa. 548.
    A master is not bound to give instructions as to dangers which are open and obvious to a man of ordinary observation and intelligence: Masterson v. Eldridge, 208 Pa. 242; Dynes v. Bromley, 208 Pa. 633; Taylor v. Steel Castings & Machine Co., 217 Pa. 269; Stitzel v. Wilhelm Co., 220 Pa. 564; Smith v. Brown, 229 Pa. 147; Long v. Folwell Bros. & Co., 228 Pa. 314; Eisenberg v. Fraim, 215 Pa. 570; Vant v. Roelofs, 217 Pa. 535; Landis v. Curtis & Jones Co., 224 Pa. 400; Greenway v. Conroy, 160 Pa. 185.
    Plaintiff assumed the risk: Eddleman v. Penna. Co., 223 Pa. 318; Danisch v. Amer, 214 Pa. 105; Schall v. Cole, 107 Pa. 1; Fricker v. Bridge Co., 197 Pa. 442; Ehni v. Tube Works Co., 203 Pa. 186; Lee v. Dobson, 217 Pa. 349; Stitzel v. Wilhelm Co., 220 Pa. 564.
    Direction by fellow servant does not bind principal: Greenway v. Conroy, 160 Pa. 185; Landis v. Curtis & Jones Co., 224 Pa. 400; Vant v. Roelofs, 217 Pa. 535.

      George Quintará Horwitz, with him Layton M. Schoch, for appellee.
    Under all the evidence the appellants were liable: Sturtz v. R. R. Co., 225 Pa. 249; Staddon v. Chapman Mineral Co., 33 Pa. Superior Ct. 475; Manola v. Enterprise Stamping Co., 223 Pa. 116; Cargill v. Phila. Towel Supply & Laundry Co., 185 Pa. 269; Greenan v. Eggeling, 30 Pa. Superior Ct. 253; Winters v. Bowl, 204 Pa. 41; Mapes v. Provision & Packing Co., 31 Pa. Superior Ct. 453; Peterson v. Elk Tanning Co., 228 Pa. 434.
    An employer can only relieve himself of the duty of giving adequate instructions to a child of sixteen and to furnish him a safe place to work, by performance: Smith v. Hillside Coal & Iron Co., 186 Pa. 28; Doyle v. Waste Co., 204 Pa. 618; Welsh v. Butz, 202 Pa. 59; Lillie v. Car & Foundry Co., 209 Pa. 161; Carr v. General Fire Extinguisher Co., 224 Pa. 346; Groves v. McNeil, 226 Pa. 345.

      April 10, 1911:
    In order for the appellants to be entitled to a verdict, it must be shown that McNees not only knew, but must have appreciated the danger in which he was put: Valjago v. Carnegie Steel Co., 226 Pa. 514; Sweigert v. Klingensmith, 210 Pa. 565.
    It was the duty of McNees to obey Robb, his superior: Dougherty v. Dobson, 214 Pa. 252; McGeehan v. Hughes, 217 Pa. 121.
   Opinion by

Mr. Justice Mestrezat,

The first, second, third, fifth and sixth assignments allege error in answer to points for charge. The points were all declined, when it is apparent they should have been affirmed. There is no contention that they did not contain a correct statement of the facts and the law, or that they should not have been affirmed. It may have been an oversight of the learned judge in the hurry of the trial, but the effect was to deny to the defendant what he was unquestionably entitled to have — a distinct and unqualified affirmance of each of the points.

The answer to the first point was: “The first point has been sufficiently covered in the general charge, and is declined.” The legal proposition contained in the point was correct and it should have been affirmed. What disposition the learned court made of it in the general charge is not disclosed by the answer. Instead of saying at the end of his answer that the point “is declined,” he should have said that it “is affirmed.” The answers to the other points are equally unsatisfactory and incorrect. The learned judge declines them all because he thinks he has covered the instruction prayed for in his general charge. If he is correct and the propositions contained in the points had received his approval in the general charge, it was clear error for him to specifically decline the points. What disposition he made of the points in the general charge does not appear in the answers unless the instruction in the charge was a denial of the requests contained in the points. The answers gave no clear expression of the court’s views as to the propositions contained in the several points, and this the appellants were entitled to have. As the answers appear in the record, the points were declined and, as we have said, this was clear error.

The answers to the five points referred to were much more objectionable than those which were condemned in Huddleston v. Borough of West Bellevue, 111 Pa. 110; Duncan v. Sherman, 121 Pa. 520, and People’s Savings Bank v. Denig et al., 131 Pa. 241. In each of those cases the answers to the points were substantially as follows: “These instructions (the charge) covered all the points . submitted by counsel on both sides, and so far as they are answered in the general charge they are affirmed, and so far as denied, they are refused.” The answer was held to be unsatisfactory, and such practice was emphatically disapproved. In the opinion in the last cited case, quot- . ing from the earlier cases, it is said: “This is a very unsatisfactory way of answering points. It renders the point of no possible value with the jury, and always adds greatly to our labors. We are often compelled to go again and again through a long charge, to see if it covers the respective points. If the practice is continued, and especially if it increases, some of our earlier decisions will have to be modified, and a more literal compliance with the act of assembly enforced. . . . We also think the points should have been so answered as to leave with the jury a clear idea of the rule by which they were to be guided. The plaintiff’s counsel submitted a series of points, ten in number, to which the court made this response: 'so far as the points are in accordance with what we have said to you was the controlling question in the case, they are affirmed, and so far as they are not in accordance with the opinion we expressed in the general charge, they are refused.’ ”

We think the question of the defendants’ negligence was for the jury. The negligence alleged was that the defendants did not give warning of the danger which the plaintiff would incur in attempting to sand the track while sitting on the bumper, and in not instructing him how to perform the service and avoid such danger. The plaintiff was a youth of about sixteen years of age. He had lived his life upon a farm and was wholly inexperienced in the work which he was assigned to do. It is true that for about a month before he was injured he had been at work at this place, but his duties were to uncouple the cars and to clean the exterior of the donkey engine when it was not in motion. Two or three days prior to the accident, he was directed to sand the rails of the track. He did this by walking along the track in front of the moving engine and dropping the sand from a can which he held in his hand. According to his story, he was directed by the engineer, on the day of the accident, to get on.the narrow bumper in front of the engine and sand the rail from that position. He says he got on the right-hand side of the bumper and was then ordered by the engineer to get on the left-hand side which he did while the engine was at rest. To secure himself in this position, he put his left foot around the end of the bumper. The train started and after it had gone about 150 feet there was a jolt and his left foot was caught between the bank and the end of the bumper. The plaintiff was thrown from his seat and severely injured, the wheel of the engine passing over his left leg. The engine was a small donkey engine, was run over a temporary and rough track and was used in a cut, the sides of which were three or four feet high. The plaintiff was employed by the engineer and foreman of the work, the latter instructing him to perform such duties as the engineer assigned him to do. According to his testimony, he received no instructions how to sand the rails while sitting on the bumper, or how to avoid the danger incident to the service. He says the only instructions he received from the engineer were to be careful.

The defendants’ engineer and foreman both denied that the boy was directed to get on the bumper to sand the rails. The engineer testifies that he told the boy several times not to get on the front of the engine, not to get on the bumper at all as accidents had resulted to persons in doing so. The engineer says that he told the boy after he had sanded the right-hand rail by walking in front of the engine to put sand on the left-hand rail, and that he, the engineer, being on the right-hand side of the cab saw the boy start in front of the engine to perform the service but he saw him no more until after the accident. He said he did not know the boy was on the bumper, and that his position in the cab would have prevented him seeing the boy in that position if he had been there.

The learned court below submitted the question to the jury, and they found for the plaintiff, thereby giving credit to the boy’s story. We think this was a place of danger to an inexperienced youth, and that the boy should have been properly instructed how to perform the service with safety to himself. He was wholly without previous experience in that kind of work. The railroad track was a temporary construction, was very rough, and the little engine jolted in passing over the track which made the position of the boy on the bumper unsafe. There was no running board or rest for his feet on the bumper, nor railing or other means of making his position secure, and he attempted to protect himself by putting his foot around the end of the bumper. He used his hands to hold the can in putting the sand on the rails. It is true that he could see the conditions as they existed there, but that did not relieve his employer from instructing him how to avoid the danger. It does not appear that he knew the proximity of the track to the side of the cut or that by putting his foot around the end of the bumper it would come in contact with the side of the cut. There is nothing in the case to show that he had knowledge of that important fact which was necessary to enable him to avoid the danger incident to having his foot caught between the side of the cut and the end of the bumper. He had had no experience which would take the place of proper instructions. It is doubtful whether he had ever seen a locomotive prior to his engagement at this place, and it is certain that he was exposed to danger by occupying the seat on the bumper. The learned court left the question of the necessity for instructions to the jury in a charge to which no error is assigned, and we think there was sufficient evidence to warrant its submission.

For the reasons stated we must sustain the first, second, third, fifth and sixth assignments of error. The judgment is reversed with a venire facias de novo.


author: Per Curiam,

text:
    Green v. Duffee. Glauser’s Appeal.

      Appeals — Jurisdiction—Determination of amount in controversy — A ct of May 5,1899, P. L. 248.

    1. Where on the distribution by an auditor of a fund, the proceeds of a sheriff’s sale of real estate, a mechanic’s lien claimant presented a claim for $2,162.77 and was awarded $1,266.20, and it appears that there was no dispute over the amount due the claimant, and all questions as to the validity of his lien were decided in his favor by the auditor, but the fund was insufficient to pay the lien, and other mechanics’ liens, in full because of the priority in distribution given to a mortgage, an appeal by the claimant questioning the right of such priority lies within the jurisdiction of the Superior Court.
    2. The intent of the Act of May 5, 1899, P. L. 248, was to make statutory provision for determining the appellate jurisdiction by furnishing standards of proof in two classes that should include every possible case. In issues involving title or possession of property, jurisdiction is determined by the certificate of the judge. In issues involving the payment of money, the amount claimed, if there has been no recovery, and the amount of the judgment or award when there has been a recovery, is the standard fixed by the act in order to establish a uniform rule.
    Argued Feb. 8, 1911.
    Appeal, No. 365, Jan. T., 1910, by Stacy G. Glauser & Son, from decree of C. P. Delaware Co., Dec. T., 1909, No. 284, dismissing exceptions to auditor’s report in case of John P. Green v. John H. Duffee et al.
    Before Fell, C. J., Bbown, Mestkezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    April 10, 1911:
    Remitted to the Superior Court.
    Sci. fa. sur mortgage. Exceptions to report of William I. Schaffer, Esq., auditor.
    The case is stated in the opinion of the Supreme Court.

      Error assigned was in overruling exceptions to auditor’s report.

      George M. Booth, for appellants.

      Garrett E. Smedley, for appellee.
   Per Curiam,

On the distribution by an auditor of a fund, the pro-, ceeds of a sheriff’s sale of real estate, the appellant, a mechanic’s hen claimant, presented a claim for $2,162.77 and was awarded $1,266.20. There was no dispute over the amount due the claimant, and all questions as to the validity of his lien were decided in his favor by the auditor. The fund was insufficient to pay his lien, and other mechanics’ liens, in full, because of the priority in distribution given to a mortgagee. The right of priority is raised by this appeal. The question now to be considered is whether the appeal should have been taken to this or to the Superior Court.

Before the Act of May 5, 1899, P. L. 248, and in the absence of any statutory provision for determining the appellate jurisdiction, we adopted as a test of the amount really in controversy, in such an appeal as this, the difference to the appellant between the award appealed from and the award sought from this court. The act of 1899 established a mode of ascertainment by providing that the amount or value really in controversy in ejectment or other issues involving title or possession of real estate or chattels should be determined by the certificate of the judge and that “in any suit, distribution or other proceedings in the common pleas or orphans’ court, if the plaintiff or claimant recovers damages either for a tort or for a breach of contract, the amount of the judgment, decree or award shall be conclusive proof of the amount really in controversy; but if he recovers nothing, the amount really in controversy shall be determined by the amount of damages claimed in the statement of claim or in the declaration.” In Prentice v. Hancock, 204 Pa. 128, it was said by Mitchell, J., that “while the expression 'if the plaintiff recovers damages, either for a tort or a breach of contract ’ is not technically accurate as applied to a decree upon a trustee’s account, yet the latter is clearly within the legislative intent of the clause” and that the intent of the act was to provide standards of proof in two classes that should include every possible case. In issues involving title or possession of property, jurisdiction is determined by the certificate of the judge. In issues involving the payment of money, the amount claimed, if there has been no recovery and the amount of the judgment or award when there has been a recovery, is the standard fixed by the act in order to establish a uniform rule. The construction given the act in Prentice v. Hancock, in relation to cases not strictly within the words of its provisions, has been observed in Astwood v. Wanamaker, 209 Pa. 103; May’s Est., 218 Pa. 64; Spring City Brick Co. v. Martin Brick Mach. Mfg. Co., 221 Pa. 385.

The jurisdiction in this appeal is in the Superior Court, and it is ordered that the record be remitted to that court.


text:
    Heffner v. Albright, Appellant.

      Evidence — Judgments—Defenses—Executors and administrators^-Account — Payment—Jurisdiction, O. C: — Transcript—Jurisdiction, C. P.

    1. In settling the accounts of executors, administrators and guardians the jurisdiction of the orphans’ court is exclusive, and in a proceeding on its transcript in the common pleas, no defenses but payment and nul tiel record are available.
    2. On a scire facias to revive and continue the lien of a judgment entered in the common pleas, upon the filing of a certified transcript from the orphans’ court, showing a balance due by executors to the widow of the decedent, evidence is inadmissible to show that before the adjudication by the orphans’ court one of the executors had sold the widow six houses under a verbal agreement with her that he and his coexeeutor “were to take of such moneys as might come into their hands” as executors, the amount of the purchase price of the houses that was unpaid, the purpose of the offer, as stated by counsel, being to prove that long prior to the adjudication, the amount the widow was to be entitled to, had by the agreement mentioned, been paid her, and that nothing was then due her by the executors.
    Argued Feb. 13, 1911.
    Appeal, No. 106, Jan. T., 1910, by defendants, from judgment of C. P. Schuylkill Co., Sept. T., 1907, No. 196, on verdict for plaintiff by direction of the court in case of Emma Heffner v. D. H. Al-bright and John H. Phillips.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Scire facias to revive hen of judgment. Before Shay, P. J.
    The opinion of the Supreme Court states the case.
    The court directed a verdict for the plaintiff. Defendant appealed.

      Errors assigned were in rulings on evidence and in directing verdict for plaintiff.

      William Wilhelm, with him Geo. W. Byon, for appellants.

      April 10, 1911:

      R. II. Koch, with him S. M. Enterline, for appellee.
   Per Curiam,

This was a scire facias to revive and continue the lien of a judgment entered in the common pleas, upon the filing of a certified transcript from the orphans’ court, showing a balance due by executors to the widow of the decedent. At the trial, offers of testimony were made, to show that before the adjudication by the orphans’ court one of the executors had sold the widow six houses under a verbal agreement with her that he, and his coexecutor “were to take of such moneys as might come into their hands” as executors, the amount of the purchase price of the houses that was unpaid. The purpose of the offer, as stated by counsel, was to prove that long prior to the adjudication, the amount the widow was found to be entitled to, had by the agreement mentioned, been paid her, and that nothing was then due her by the executors. The assignments of error relate to the overruling of these offers and the direction of a verdict for the plaintiff.

In settling the accounts of executors, administrators and guardians the jurisdiction of the orphans’ court is exclusive, and in a proceeding on its transcript in the common pleas, no defenses but payment after the adjudication and nul tiel record are available: Bernhardt v. Taylor, 223 Pa. 307.

If the agreement attempted to be set up could, as argued, be considered an equitable assignment of an amount sufficient to pay the balance of the purchase money of the houses, it was, in effect, a payment pro tanto by the executor to the widow. The adjudication was conclusive of the amount due by the former to the latter, and that matter could not be inquired into by the common pleas.

The judgment is affirmed.


author: Mr. Justice Brown,

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    Liggett, Appellant, v. Kaufmann.

      Landlord and tenant — Construction of lease — Privilege of re-renting— Previous leases — Options.
    Where premises are rented by testamentary trustees for a term of years, and it appears that the testatrix in her lifetime had executed two leases for the same premises to the same lessees for a term of years with the privilege in the lessees and their assigns to re-rent the premises for five years and if they should exercise this privilege of re-renting they were then to have the privilege of re-renting for an additional five-year term, and it further appears that the trustees in their lease, after reciting ipsissimis verbis the privileges granted by the leases executed by the testatrix, provided that whereas the lessees had given the trustees notice of their ‘-'option” to extend the term for the first five-year period and desired to “provide for and obtain the right of further options for the extension of said lease before the expiration of said two periods, so that they may have at the expiration of the second of said periods an extension of the said leases for five years thereafter and for the extension after that period, of said leases for another period of four years, .... the parties hereto,..... agree to such extensions upon the exercise of like options upon the same terms as expressed within said leases with regard to the two options therein provided for,” the lessees take an absolute right or privilege of re-renting under the lease from the trustees and not a mere option.
    Argued Nov. 1, 1910.
    Appeal, No. 42, Oct. T., 1910, by plaintiff, from decree of C. P. No. 4, Allegheny Co., First T., 1908, No. 344, declaring valid a certain agreement in case of Frank R. Liggett, trustee, etc., v. Henry Kaufmann, Isaac Kaufmann and Morris Kaufmann, partners doing business as Kaufmann Bros.
    Before Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Alternative bill in equity to declare an option to renew a lease void or else to determine the rental thereunder. Before Swearingen, P. J.
    Sarah L. Hitchcock, the owner of certain property in the city of Pittsburg, leased a certain part of said property in 1885 to Jacob Kaufmann, Henry Kaufmann, Isaac Kaufmann and Morris Kaufmann, partners trading as Kaufmann Bros., and leased the remainder of the property to the said lessees by lease dated July 29, 1889. Both of these leases expired April 1, 1898, but contained options for renewing the same for two additional terms for five years each under a rental to be fixed by arbitrators, both of which options were accepted by the lessees, who erected a building for department store purposes and, under the leases and the renewals, continued to occupy the building until April 1, 1908. Sarah L. Hitchcock died April 15, 1892, and by her last will and testament Marcus A. Woodward and John Liggett were appointed executors and trustees, both of whom died, and Frank It. Liggett became their successor and sole trustee. On November 20, 1897, an agreement was executed between John Liggett and Marcus A. Woodward trustees of the first part, and Jacob Kaufmann, Isaac Kaufmann, Morris Kaufmann and Henry Kaufmann, partners doing business under the name of Kaufmann Bros., of the second part, giving to the second parties further options for the renewals of the leases for two additional terms; Jacob Kaufmann, one of the partners, died on November 1, 1905, at which time the option under the last lease had not been accepted. The plaintiff filed a bill in equity averring that the three surviving partners had formed a new firm and claimed the right to renew the leases and had declared their intention to hold the premises. The bill prayed that the option in question be declared void and be ordered given up for cancellation, or, if the option should be declared valid, that the court should determine the rental thereunder. The court filed a decree holding that the defendants had a right to renew the lease and fixing the rental at 890,000 per annum.

      Error assigned was in dismissing exceptions to the decree.

      John M. Freeman, with him Harry F. Stambaugh and D, T, Watson, for appellant.
    An option to renew a lease given to certain specified individuals as partners cannot be exercised by the survivors: Winton’s Appeal, 111 Pa. 387; Howell v. Behler, 41 W. Va. 610 (24 S. E. Repr. 646); Buchanan v. Whitman, 76 Hun 67 (27 N. Y. Supp. 604); s. c. 161 N. Y. 253 (45 N. E. Repr. 556); James v. Pope, 19 N. Y. 324; Tweedie v. Olson Hardware & Furn. Co., 96 Minn. 238 (104 N. W. Repr. 895, 1089); Finch v. Underwood, L. R. 2 Ch. Div. 310.
    April 17, 1911:
    The option to renew was personal to the four Kaufmanns, did not pass to the survivors, and terminated on the death of Jacob Kaufmann: Elder v. Robinson, 19 Pa. 364; Menger v. Ward, 87 Texas, 622 (30 S. W. Repr. 853); Rease v. Kittle, 56 W. Va. 269 (49 S. E. Repr. 150); Dyer v. Duffy, 39 W. Va. 148 (19 S. E. Repr. 540), 24 L. R. A. 339; Arkansas Val. Smelting Co. v. Belden Min. Co., 127 U. S. 379 (8 Sup. Ct. Repr. 1308); Delaware County Com’rs v. Diebold Safe & Lock Co., 133 U. S. 473 (10 Sup. Ct. Repr. 399); Lyon & Co. v. Plum, 75 N. J. Law, 883 (69 Atl. Repr. 209).

      W. B. Rodgers and A. M. Beitler, with them J. Rodgers McCreery and Samuel Dickson, for appellees.
    After the death of Jacob Kaufmann his former and surviving partners became vested with the title to the leases and rights of renewals and were and are entitled to sell or dispose of the same for the benefit of the dissolved firm: Oram v. Rothermel, 98 Pa. 300; Shipe’s Appeal, 114 Pa. 205; Eaton’s Appeal, 66 Pa. 483; Roe v. Hayley, 12 East, 464; Johnson’s Appeal, 115 Pa. 129; Betts v. June, 51 N. Y. 274; Blount v. Connolly, 110 Mo. App. 603 (85 S. W. Repr. 605).
   Opinion by

Mr. Justice Brown,

In determining whether the appellees have the right to continue in the occupancy of the premises in question for a period of five years from April 1, 1908 — the date of the expiration of the lease executed to them by John Liggett and M. A. Woodward, trustees of the estate of Sarah L. Hitchcock, deceased — the two leases executed by her must be taken into consideration, for in the lease by the trustees, under which the appellees claim the right to re-rent, material references are made to those executed by her. In each of them the lessees were Jacob Kaufmann, Isaac Kaufmann, Morris Kaufmann and Henry Kaufmann, partners doing business in the name of J. Kaufmann & Bros, and the privilege granted, not only to them, but to “their assigns,” was to re-rent the premises for a period of five years from April 1, 1898, at a rental to be fixed as provided for in the lease, and a further covenant on the part of the lessor was that, if the lessees should exercise the privilege of re-renting for the said period of five years, they were to have the privilege of re-renting for an additional term of five years. In the lease executed by the trustees on November 20, 1897, to the same lessees, the privileges granted to them or “their assigns” by Mrs. Hitchcock of rerenting the premises are recited ipsissimis verbis, and, after such recital, there is the following clause upon which the appellees stand in asserting their right to an extension of the term: “And whereas the said parties of the second part have, pursuant to the said terms of the said lease, given notice to the said trustees, parties of the first part hereto, of their option to extend the term of the lease for the said first period of five years running from April 1, 1898, and it is desired by the said parties of the second part for the better security for the future of their business interests where the same is at the present located, to provide for and obtain the right of further options for the extension of said leases before the expiration of said two periods, so that they may have at the expiration of the second of said periods an extension of the said leases for five years thereafter and for the extension after that period, of said leases for another period of four years, and the parties of the first part deeming the grant of such option as of advantage to the estate of Sarah L. Hitchcock, the parties hereto, therefore, in consideration of the premises agree to such extension upon the exercise of like options upon the same terms as expressed within said leases with regard to the two options therein provided for, that is to say, the parties of the first part hereby agree to and with the said parties of the second part that they shall have and may exercise the same privileges under the same terms and conditions for a renewal of said leases for a period of five years from April 1,1908, and also exercise the same privilege for another renewal of said leases for a further term of four years from the 1st day of April, 1913, the rentals to be fixed as provided by the provisions for renewals as aforesaid in said leases by mutual agreement or by arbitrators, it being understood that on failure to exercise any of the said options within the time and according to the terms of said leases, as aforesaid, the leases terminate with the term in which notice of such option is to be given according to the terms thereof.”

Jacob Kaufmann, one of the parties to the agreement with the trustees, died November 1, 1905, during the second extension of the term acquired under the lease from Mrs. Hitchcock, and the contention of the appellant is that the three surviving lessees cannot avail themselves of what, it is insisted, was but an option given by the trustees to four, to be accepted by them jointly, and which was revoked by the death of one of them before it had been accepted. The agreement of November 20, 1897, is not to be so read. True, in the above-quoted clause from the agreement with the trustees the words “option” and “options” are to be found, but that they were used by the parties to the agreement to mean an absolute right or privilege granted to the lessees, or their assigns, is the only conclusion to be reached. That such right or privilege, and not a mere option to the four lessees jointly, was granted by Mrs. Hitchcock in her leases cannot be questioned, and it is that right or privilege to which the trustees refer when they designate it an “option to extend the term of the lease for the said first period of five years running from April 1st, 1898.” Such designation of the right or privilege granted by Mrs. Hitchcock did not change its character, and what she granted was a right or privilege to the lessees “or their assigns” to renew the lease. When the trustees agreed to extensions beyond the year 1908, the word “options” is used, but immediately following it is the clear and unambiguous clause that the lessees “shall have and may exercise the same privileges under the same terms and conditions for a renewal of said leases for a period of five years from April 1st, 1908,” as were “expressed” in the leases executed by Mrs. Hitchcock. With the privileges granted by her leases so written into the lease by the trustees, as they intended they should be there rewritten, it must be read as granting the right or privilege to the lessees, “or their assigns,” of re-renting for a term of five years from April 1, 1908. This right or privilege became an asset of the partnership, which, upon the death of Jacob Kaufmann, passed to the surviving members of the firm, not only by operation of law, but by assignment of his interest under the thirteenth article of the copartnership agreement, which was part of the evidence in the proceedings in the court below. The three surviving partners became the assigns of the right or privilege to re-rent.

As it clearly appears from the face of the agreement that the right upon which the appellees insist, passed to them under it, we need not refer to the situation of the parties and the surrounding circumstances at the time it was executed as indicating the intention of both lessors and lessees that the appellees were to have the right to an extension of the term.

The alternative prayer- of appellant’s bill was that, if the lease by the trustees should be construed as giving to the appellees the right to extend the term, the rental for the five years from April 1, 1908, should be fixed by the court. This was done, and, after careful examination of all the testimony submitted on the question of a proper rental, we cannot say there was error in the decree directing that the appellees pay an annual rental of $90,000 and all taxes and insurance during the extended term.

The assignments of error are all dismissed and the decree is affirmed practically on the opinion of the court below, the costs to be paid by appellant.


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    Gordon, Appellant, v. The Prudential Insurance Company of America.

      Insurance — Life insurance — Conditional delivery of policy — Payment of premium — “Good health” — Change in health — Notice to insurer.

    1. In an action upon a policy of life insurance a verdict should be directed for the defendant where it appears that the policy was issued and handed to the agent, who delivered it to the insured before payment of the premium and upon the insured giving a receipt in which it was stated that the policy was “received for the purpose of inspection only and upon the understanding that it is not to be in force until the first premium has been paid by me and the official receipt of the company delivered to me during my lifetime and in good health, as provided in my application upon which the above numbered policy was issued,” and where it is undisputed that on the day of the payment of the premium the insured was ill of the disease which caused his death shortly after.
    2. The general rule of insurance is that if prior to the consummation of the contract the applicant has died, or there has been a material change in his health, the insurer must be informed thereof; otherwise, a fraud would be perpetrated upon the insurer.
    Argued March 22, 1911.
    Appeal, No. 24, Jan. T., 1911, by plaintiff, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1908, No. 583, for defendant non obstante veredicto in case of Mary A. Gordon v. The Prudential Insurance Company of America.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit on a policy of life insurance.
    On the trial the jury rendered a verdict of $2,171.20.
    The facts appear in the following opinion of Magill, J., entering judgment for defendant non obstante veredicto.
    This is an action on a life insurance policy issued by the defendant company on the life of Daniel P. Gordon, dated April 21, 1908. The motion for judgment non obstante veredicto raises the questions whether there was sufficient evidence of “good health” of the insured at the time of the payment of the premium, and whether there was sufficient evidence that at the time of the payment of the premium “the health of the insured was in the same condition as described in the application,” for the policy.
    On April 8, 1908, Daniel P. Gordon, husband of the plaintiff, made application to the defendant company for insurance on his life in the sum of $2,000, payable upon his death to his wife, the plaintiff in this cause. This application was in writing and is in evidence. At the time of the application Mr. Gordon was forty-nine years of age, a bricklayer, and according to the testimony was a strong, vigorous, healthy man. In the application, to the question, “Are you in good health?” he answered, “Yes.” The application, among other things, provided, “Said policy shall not take effect until the same shall be issued and delivered by the said company and the first premium paid thereon in full while my health is in the same condition as described in this application.” In pursuance of the application aforesaid the company, on April 21, 1908, issued its policy and placed it in the hands of the agent who had taken the application, who retained it until April 25, 1908, when he delivered it to Mr. Gordon, taking from him a receipt for the same signed by Gordon, in which it is recited that the policy was received “for the purpose of inspection only, and upon the understanding that it is not to be in force until the first premium payable thereunder has been paid by me and the official receipt of the company delivered to me during my lifetime and in good health, as provided in my application upon which the above numbered policy was issued.”
    The receipt was held by the agent and the policy retained by Gordon for the purposes named in said receipt, no premium being paid to the agent at that time.

      On Thursday, May 14, on arising in the morning Mr. Gordon complained of feeling ill, and, after eating his breakfast, returned to bed. He suffered a chill and the plaintiff sent for the family physician, who called about noon the same day, found that he had fever, was suffering from pain in the side on breathing, and with increasing respiration, and diagnosed the ailment as pleurisy, and thereupon prescribed for him. The insured continued in bed under the constant care of his wife and daily attendance of his physician until Saturday morning, May 16, at which time he arose, partially dressed himself, drew three checks and returned to his bed. One of the checks drawn by him was for the amount of the first semiannual premium on the policy in question. This check he handed to his son, with directions to take it to the agent from whom he had received the policy. The check was delivered by the son to the agent without any statement as to his father’s condition. The agent received the check without asking questions as to the condition of Mr. Gordon, and gave a receipt therefor. During the same day, Saturday, May 16, the attending physician, Dr. Murphy, called on the insured, according to his testimony, about noon, or within two hours after the insured had drawn the check in payment of the premium. The physician at this time diagnosed the disease as pneumonia, and considered it so serious that he advised a consultation, which was held in the evening of the same day by Dr. Murphy in connection with Dr. Scull, selected by the family for that purpose. After the consultation, the two physicians agreed that the ailment from which the insured was suffering was pneumonia. After the consultation both physicians continued to attend Mr. Gordon. During Sunday and Monday his condition continued to grow worse, and he died about 2 a. m. Tuesday, May 19, having been confined to his room and bed from the beginning of his illness, the previous Thursday morning, until the time of his death.
    According to the testimony of Dr. Scull, at the time of consultation and examination of the insured, “his lung then was in a solid congested condition, full of blood, and it was a serious condition.”
    Proofs of death were furnished by plaintiff to the defendant in accordance with the provisions of the policy, in which the attending physician, to the question, “State the remote cause of death?” answered, “Cardiac failure,” and to the question, “State explicitly the immediate cause of death,” he answered, “Pneumonia lobas.”
    After being furnished with the proofs of death of the insured, the defendant company tendered to the plaintiff a check for the amount of the premium which had been paid, which check was refused.
    The company declining to pay the amount of the policy, this suit was brought. The case was submitted to the jury, and a verdict was rendered for plaintiff for the amount of the policy with interest.
    At the trial we were of opinion that this case was governed by the case of Barnes v. Mutual Life Assn., 191 Pa. 618, the facts of the two cases having a striking similarity, and that the jury should be permitted to pass upon the question of the condition of the health of the insured at the time of the payment of the premium.
    ■ Upon a careful review and consideration of the testimony, we are of opinion that the case is distinguishable from the Barnes case, and not ruled by it.
    In the Barnes case the policy was issued and given to the agent of the company to be delivered to the insured upon payment of the premium. The premium, was paid and the policy was thereupon delivered without any qualification or condition,, other than the conditions contained in the policy itself, and the contract thereupon became complete unless voided by breach of the conditions of the policy. In the case at bar, the policy was issued and handed to the agent, who delivered it to the insured before payment of the premium, and upon the insured giving a receipt, in which it was stated that the policy was “received for the purpose of inspection only and upon the understanding that it is not to be in force until the first premium payable thereunder has been paid by me and the official receipt of the company delivered to me during my lifetime and in good health, as provided in my application upon which the above numbered policy was issued.’’ This, therefore, was a conditional delivery of the policy and the contract could not be consummated except upon performance of that condition, namely, payment of the premium, thereafter, while the insured was alive and in good health, as provided in both the application and receipt for the policy.
    Again, in the Barnes case the insured, three days before the payment of the premium, contracted an ordinary cold, and pneumonia, ,the disease of which Mr. Barnes died, did not “set in” until the day after the premium was paid and the policy was delivered, and hence there was a question for the jury as to what was his condition of health on the day of the payment of the premium and delivery of the policy. In the case at bar, the insured became ill' on Thursday, May 14, when he had a severe chill, and on the same day the physician diagnosed the illness as pleurisy, which cannot be said to be an “ordinary cold.” He continued ill in bed until Saturday, the sixteenth, the day on which the check was drawn to pay the premium on the policy, and on the same day, within a few hours after the check was delivered to the agent, the attending physician announced that Mr. Gordon had pneumonia of such a serious character as to require a consultation. The consultation of physicians was held the same day, and both physicians agreed and testified that he then had pneumonia, the disease which caused his death, the following Tuesday, the nineteenth, at 2 a. m., his condition from Saturday being so serious as to require the constant attendance of two physicians thereafter.
    It is therefore undisputed that on the day of the payment of the premium, Mr. Gordon was ill of the disease which caused his death within sixty-four hours after such payment. There was no dispute, nor contradictory testimony as to the condition of Mr. Gordon’s health on the day of payment, and, therefore, nothing for the jury to pass upon in this respect.
    And again, in the Barnes case, as was said in the opinion of the Supreme Court, “the evidence was clearly sufficient to warrant the submission of the case to the jury on the question of the ‘good health’ of the insured at the time the premium was paid and the policy delivered to the plaintiff, and other subordinate questions of fact in dispute. This is especially so, in view of the fact that the evidence was more or less conflicting on all material questions of fact.”
    In the case at bar, there was no question of the condition of the health of the insured on the day of the payment of the premium, and no conflicting testimony as to the serious nature of his illness on that day, nor as to any other material fact in the cause. No person testified that Mr. Gordon was in “good health” on Saturday, May 16, the day the premium was paid, but on the contrary, every witness who had knowledge of his condition and who was asked the question, including the plaintiff herself, said that he was not in “good health” on that day. How, then, can a jury be permitted to find that he was in “good health” at the time of the payment of the premium in the absence of any evidence to warrant or support such finding?
    In the opinion of Chief Justice Sterkett in the Barnes case, it is said, “The term ‘good health’ when used in a policy of life insurance means that the applicant has no grave, important or serious disease and is free from any ailment that seriously affects the general soundness and healthfulness of the system. A mere temporary indisposition which does not tend to weaken or undermine the constitution at the time of taking membership does not render the policy void,” (quoting from 3 Joyce on Insurance, sec. 2004).
    In this case it is impossible to find from the evidence that on Saturday, May 16, the day of the payment of the premium, and at the time of such payment, the applicant had no grave, important or serious disease, or that he was free from any ailment that seriously affected the general soundness and healthfulness of his system, or that he suffered a mere temporary indisposition which did not tend to weaken or undermine his constitution at the time of paying the premium. Nor is it possible to find that he enjoyed such health and strength as to justify a reasonable belief that he was free from derangement of organic functions, or free from symptoms calculated to cause a reasonable apprehension of such derangement, and that to ordinary observation and outward appearance his health was reasonably such that he might, with ordinary safety, be insured and upon ordinary terms which only would satisfy the requirement of “good health.” But on the contrary, the testimony conclusively shows that on Saturday, May 16, 1908, at the time of the payment of the premium, the condition of Mr. Gordon’s health was both a serious and a dangerous one, and such as would preclude the possibility of any life insurance company, with knowledge of his condition, issuing its policy upon his life for anything like the ordinary premium; in other words, his condition at that time was such as to render him a hazardous and dangerous risk, which would not be assumed by any insurance company upon receipt of the ordinary premium for insurance upon the life of an ordinary risk.
    With the question of good faith on the part of the insured at the time of paying the premium, we have nothing to do. The fact is that his physical condition was not disclosed to the company or its agent at the time of the payment of the premium; and that his condition was not at that time such as, in his application for insurance, he stated it to be. This being true, it is no legal hardship upon the beneficiary in the policy to say that the premium paid under such conditions does not entitle her to recover the amount of the insurance from the defendant company.

      The general rule appears to be that if prior to the consummation of the contract the applicant has died, or there has been a material change in his health, the insurer must be informed thereof; otherwise, a fraud would be perpetrated upon the insurer: Cook on Life Insurance, sec. 24; May on Insurance, sec. 190; Whitley v. Insurance Co., 71 N. C. 480; Calvert v. Insurance Co., 83 Mass. 308; Blumer v. Phoenix Ins. Co., 45 Wis. 622; Piedmont, etc., Life Insurance Co. v. Ewing, 92 U. S. 377; DeCamp v. Insurance Co., 3 Ins. L. J. (N. Y.) 89; Ormond v. Fidelity Life Assn., 96 N. C. 158 (1 S. E. Repr. 796).
    For the reasons here stated, we are of opinion that the judgment for the plaintiff in this cause should not be permitted to stand. The motion of the defendant is therefore sustained, and judgment is now entered for the defendant non obstante veredicto.

      Error assigned was in entering judgment for defendant n. o. v.

      Walter Biddle Saul, for appellant, cited: Barnes v. Mutual Life Asso., 191 Pa. 618.

      Frederick J. Shoyer, with him Henry Arronson, for appellee.
    If there has been a change in health between the date of application and the delivery of the policy, the company is entitled to know it, that it might determine whether it would consummate the agreement: Proctor v. Ins. Co., 20 Pa. Superior Ct. 523; M’Lanahan v. Universal Ins. Co., 26 U. S. 170; Morrison v. Muspratt, 4 Bing. 60; Canning v. Farquhar, L. R. 16 Q. B. Div. 727; British Equitable Ins. Co. v. Ry. Co., 38 L. J. Ch. 132 (19 L. T. N. S. 476); Piedmont, etc., Life Ins. Co. v. Ewing, 92 U. S. 377, 380; Whitley v. Ins. Co., 71 N. C. 480; Hart v. Ins. Co., 80 Cal. 440 (22 Pac. Repr. 302); Southern Life Ins. Co. v. Kempton, 56 Ga. 339; Lanhstaff v. Metropolitan Life Ins. Co., 69 N. J. Law, 54 (54 Atl. Repr. 518) ; McCaffrey v. Knights of Columbia, 213 Pa. 609; Murphy v. Prudential Ins. Co., 205 Pa. 444.

      April 17, 1911:
   Per Curiam,

This judgment is affirmed on the opinion of the court below directing it to be entered non obstante veredicto.


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    Castor v. Castor et al., Appellants.

      Equity — Partition—Parol sale — Exclusive possession — Payment of purchase money.

    Where in a partition proceeding it appears that the plaintiff took from his father a good title to a one-fourth interest in the premises as tenant in common with the defendants, and the defendants set up a parol sale of his interest to themselves to defeat his title, but fail to show that there was payment either of part or whole of the purchase money, or exclusive possession by the defendants, a court of equity will not enforce the parol agreement, and partition will be granted.
    Argued March 22, 1911.
    Appeal, No. 55, Jan. T., 1911, by defendants, from decree of C. P. No. 3, Phila. Co., June T., 1909, No. 1,679, awarding partition in suit of Lewis F. Castor v. T. Ellwood Castor and William O. Castor.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill for partition of real estate in the twenty-third ward of Philadelphia.
    The facts appear in the following opinion filed by McMichael, P. J.
    Thomas Castor died on August 4, 1884. He had been for fifty years engaged in business in Frankford, and had acquired the real estate which is described in the bill. On this real estate there was an office, blacksmith shop and wheelwright shop, and sheds and shedding. It was situated at the corner of Frankford avenue and Overington street, in Frankford, now the twenty-third ward of the city of Philadelphia. Thomas Castor devised the property t'o his four sons, Charles M., T. Ellwood, Lewis F. and William O. Castor, share and share alike, and to their heirs and assigns forever. He also bequeathed to them the personal property. Shortly after his death his sons, Charles M., T. Ellwood and William O. Castor, formed a partnership under the name of Thomas Castor’s Sons. Lewis F. Castor was invited to join the partnership, but declined. It was suggested that Lewis F. Castor should sell to his brothers his interest in the personal and real estate, and in order to accomplish this appraisers were appointed, who appraised the personal property and the real estate. Lewis F. Castor agreed to sell at the appraised value, and his brothers agreed to purchase at whatever would be the one-fourth of the appraised value. The personal estate was appraised, payment was made and possession handed over, and there is no dispute about that, but the dispute arose subsequent to the appraisement as to the payment for Lewis F. Castor’s share of the real estate by his brothers. Lewis F. Castor desired to receive from his brothers in payment for his share, which had been assessed at the sum of $4,000, a mortgage on a portion of the property. It appears from the evidence that a deed and mortgage were prepared by Mr. Shall-cross, conveyancer, but that they were never executed. T. Ellwood Castor declined to execute the mortgage. After the refusal of T. Ellwood Castor to join in the execution of the mortgage no further steps were taken on either side to enforce their rights, or to divide this property, until the bill in equity in the present case was filed. Lewis F. Castor from the time of his father’s death was in joint possession with his brothers, constituting the firm of Thomas Castor’s Sons, of a portion of the property. He occupied jointly with his brothers an office for which he paid no rent. Lewis F. Castor was in a business which was entirely separate and distinct from the business of Thomas Castor’s Sons, and it necessitated the keeping of horses and carts, and these horses were sent by him to the “smithy” or horseshoeing shop of Thomas Castor’s Sons. An account was kept and for some years bills were furnished him, but subsequently at his suggestion the sending of bills was discontinued.
    In 1888 Charles M. Castor, the eldest of the brothers, died, and an effort was made by the remaining brothers of the firm, that is, by his brothers T. Ellwood and William O. Castor, to purchase his share of the personal property belonging to the firm of Thomas Castor’s Sons, and the real estate in which they were doing business. They were successful in purchasing the personal property, and the executors of the estate sold it to them for $1,200 in notes; and on these notes interest has been paid ever since at varying rates. The amount of $4,000 was determined upon as the value at that time of the share of Charles M. in the real estate, and the widow and Mr. Shallcross, one of the executors, were willing to sell, but Lewis F. Castor objected and declined to join in the sale. From that time to this payments have been made to the executors or to the widow of Charles M. Castor of various amounts representing interest on $4,000 at four per cent and five and four-tenths per cent and at five per cent flat. No deed was ever executed nor tendered, and although there was talk about a mortgage, and some of the receipts referred to payments on a bond, no bond and mortgage were executed.
    The witnesess who appeared before the court and testified, seemed to the court to be giving, as far as they could recollect, an accurate account of what happened, each from his own point of view. They were evidently men of determination and character, and although their testimony cannot be altogether reconciled, they do not differ greatly as to the essential and material facts in the ease. There'was a considerable dispute as to whether the mortgage which was referred to as having been agreed upon as payment for the share of Lewis F. Castor, was to be a mortgage to him, or to the Frankford & Southwark Passenger Railway Company, and it appeared that Mr. Lewis F. Castor had agreed to purchase the real estate upon which was erected the old stable from the Frankford & Southwark Railway Company, and to give a mortgage on the property devised by his father, Thomas Castor, in which he had a one-fourth interest, in payment. It was asserted on behalf of the defendants that they were not bound to give a mortgage to the Fifth and Sixth Streets Railway Company, and that for that reason T. Ellwood Castor refused to give a mortgage. I do not, however, regard this as very material. The title of the plaintiff, derived from his father, is a good title, and he has an interest which entitles him to partition unless the defendants can defeat his rights. They set up that there was a parol sale. The court is of opinion and finds that there was no such parol sale as a court of equity would enforce. There was an agreement to sell, but there was no payment of part or whole of the purchase money, nor .did the defendants after the agreement of sale go into exclusive possession of the real estate. The plaintiff has always had possession and the right of possession to a part, at least, of the premises, and under the authorities which have been cited in answer to the plaintiff’s points I have reached the conclusion that a court of equity in the circumstances of the present case would not enforce the parol agreement of the sale. This disposes, it seems to me, of the defendants’ objection to the grant of the relief asked for in the bill, namely, that there should be partition, unless the court should be of opinion that there was such a dispute as to the title as would justify the court in holding the bill in equity until the plaintiff should go into a court of law, and in an action of ejectment succeed in proving his title. In my opinion this is not a case in which resort must be had to a court of law. The plaintiff’s title as tenant in common is clear. Title was vested in his father, Thomas Castor, by deed, and he derived title by will to him to an undivided one-fourth of the real estate, which he holds or did hold with his brothers as tenants in common, and to defeat his title the defendants have set up a parol sale, but have failed to establish by full, complete, satisfactory and indubitable proofs that there was such a parol sale.

      1. The defendants have failed to show that there was payment either of part or whole of the purchase money, and they have failed to show exclusive possession. They do not set up in their answer that they have title by adverse possession, but aver in their answer that since the sale of 1885, the firm of Thomas Castor’s Sons were in actual, open, continuous and exclusive possession thereof, and from June 9, 1888, until the present the respondents as the sole owners in fee of the whole interest in the premises, have been in actual, open, continuous and exclusive possession of the premises, exercising during that time all the rights, powers and duties of ownership, making permanent improvements to the buildings, etc. These averments I think they have failed to establish by proofs.
    2. When Charles M. Castor died the personal property was appraised and paid for in notes. There was, however, no conveyance of the real estate, no deed, and no payment either in part or in whole of the purchase money, simply a payment of interest on a sum of $4,000. I am of opinion, and so find, that the defendants have failed in their proof, and have been unable to establish by clear, satisfactory and indubitable proofs that there was a parol sale by the executors under the will of Charles M. Castor to his brothers, T. Ellwood and William.
    These conclusions have been reached by me after listening to the oral testimony, and after a careful review of the testimony and consideration of the oral arguments- and of the written briefs submitted to me. The authorities which I have examined, which seem to me are conclusive upon each point of this controversy, have been cited by me in my answers to the requests for findings- of law made on behalf of the plaintiff.
    The opinion and finding of the court are that the plaintiff is entitled under the pleading and the testimony to partition, and I direct that the clerk of the court give notice to counsel for the plaintiff and to counsel for the defendants of this adjudication of the court, and that unless exceptions are filed within ten days of the date of the filing of the adjudication, a decree will be entered in accordance with the prayers of the bill.
    April 17, 1911:
    A decree was accordingly entered from which defendants appealed.

      Error assigned among others was in awarding partition.

      William H. Peace, for appellants

      Joseph B. Embery, for appellee.
   Per Curiam,

The decree of partition in this case is affirmed on the opinion of the learned president judge below directing that it be made. Appeal dismissed at appellants’ costs.


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    Malone v. Riedenauer, Appellant.

      Attachment execution — Trial—Question for jury — Evidence.
    On the trial of an attachment execution where it appears that the garnishee has denied in his pleadings possession of any property of the defendant in the judgment, and at the trial the evidence is conflicting as to whether he has or not any property of the defendant in his possession, it is error for the court to instruct the jury to find a verdict for the plaintiff, and to determine merely how much money of the defendant was in the hands of the garnishee at the time the writ went out. In such a case it is for the jury and not for the court to determine whether the garnishee has any money of the defendant, and if he has, how much the amount is.
    Argued Jan. 10, 1911.
    Appeal, No. 225, Jan. T., 1910, by garnishee, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1908, No. 2,468, on verdict for plaintiff in case of Edwin B. Malone and Charles M. Strickler, trading as Watson Malone & Sons, v. Stewart Contracting Company, Defendant, and Louis P. Riedenauer, Garnishee.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Reversed.
    Attachment execution. Before McMichael, P. J.
    At the trial it appeared that the Stewart Contracting Company had a contract with the city of Philadelphia for work on certain schoolhouses. Louis P. Riedenauer, garnishee, became surety on certain of these contracts.
    The Court charged as follows:
    [Gentlemen of the Jury: In the opinion of the court, there is only one question for you to determine, and that is, how much money was in the hands of Louis P. Riedenauer at the time the attachment went out?] [1] Counsel will give you that date, and then you will determine that question. Riedenauer said here that it was $5,200, and there is testimony that on other occasions he admitted it was $6,000. I do not think that is a matter of vital importance, nor is the matter of interest a matter of vital importance. I think it is a question of fact for you to determine, how much was in his hands at the time the attachment went out.
    [This is a somewhat novel question, but, I think, subject. to review hereafter, that your verdict should be a verdict for the plaintiff, and then you should determine how much money of the defendant, that is, the Stewart Contracting Company, was in the hands of the garnishee Riedenauer at the time the writ went out.] [2] The court hereafter will control its process so that the garnishee, Mr. Riedenauer, will be protected as surety on the bonds. That cannot be determined now by you. It must be determined in each case as it arises. The view the court takes of this matter, rather for review than for you, is this: That the money which the Stewart Contracting Company placed in Riedenauer’s hands to indemnify him for the bonds will go for that purpose; that each suit will have to be determined for itself, and then if there is any balance remaining in his hands after the determination of those suits, that balance will be applied towards this attachment execution. It is claimed by Mr. Monihan that this is premature, but in the judgment of the court, [if I were to permit a verdict to be taken for defendant, that would deprive the plaintiff here of any opportunity of collecting his debts from Riedenauer, and if Mr. Riedenauer then succeeded in defending against the cases in which he was surety, he would have his money, with no liability to anybody except Stewart;] [3] and then it would go around in a circle. I need not elaborate that any further. The question of fact which you are to determine by your verdict is, how much money was in Riedenauer’s hands belonging to the Stewart Contracting Company at the time the attachment went out, which was January, 1909; and then the process of the court will be controlled hereafter.
    April 24, 1911:
    Verdict for plaintiff for $3,427, and also that there was $6,000 in the hands of the garnishee belonging to the defendant. on January 4, 1909. The garnishee appealed.

      Errors assigned among others were (1-3) above instructions, quoting them.

      James L. Monihan, with him William M. Reese, for appellant,
    cited: Patten v. Wilson, 34 Pa. 299; Myers v. Baltzell, 37 Pa. 491.

      E. O. Michener, for appellee,
    cited: Bridesburg Mfg. Co.’s App., 106 Pa. 275; Roig v. Tim, 103 Pa. 115; DeZouche v. Garrison, 140 Pa. 430.
   Opinion by

Mr. Justice Mestrezat,

This was an attachment execution issued on a judgment against the defendant, the Stewart Contracting Company, and Louis P. Riedenauer was summoned as garnishee. To the interrogatories filed by the plaintiff, the garnishee answered that he had no property or effects of the defendant company in his possession. The plaintiff having entered a rule to plead, the garnishee pleaded nulla bona, set-off, and payment with leave, etc.

On the trial of the cause in the common pleas, the plaintiff put in evidence the judgment against the, defendant and introduced testimony to establish an indebtedness of the garnishee to the judgment debtor. This tended to show that the garnishee had received from $5,000 to $6,000 funds of the defendant at the time of the service of the writ of attachment. The garnishee testified that he was not indebted to the judgment debtor in any sum whatever at the service of the writ or since and offered evidence to show a set-off of nearly $8,000 against the funds of the defendant company which had been received by him. The jury rendered a “verdict for the plaintiff of $3,427; and also that there was $6,000 in the hands of Louis P. Riedenauer belonging to the Stewart Contracting Company on January 4,1909.” Judgment having been entered on the verdict, the garnishee has taken this appeal.

While there are fifteen assignments and most of them should be sustained, we will confine our consideration of the case to the first two which allege error in the charge of the court. The learned trial judge misapprehended the issues raised by the pleadings and the familiar and uniform practice in the trial of such causes established by all our cases.' The issuable pleas filed by the garnishee required the plaintiff to prove on the trial the property and effects of the judgment debtor in the hands of the garnishee subject to the attachment. The learned counsel of the plaintiff recognized the burden resting upon his client and attempted to meet it. The garnishee offered evidence in support of his pleas. The issues thus raised and supported by evidence should have been submitted to the jury with proper instructions as to the law applicable to the facts. The learned judge, however, instructed the jury to find a verdict for the plaintiff and to determine how much money of the defendant company was in the hands of the garnishee at the time the writ went out, which he held to be the only question in the case. He did not hold that the evidence was not sufficient in law to sustain the pleas, but instructed the jury to return a verdict against the garnishee and that “the court hereafter will control its process so that the garnishee will be protected as surety on the bonds; that cannot be determined now by you, it must be determined in each case as it arises.” This was manifest error, and, as stated above, disclosed a misapprehension of the issues raised by the pleadings. It was incumbent on the plaintiff to show funds or property of the judgment debtor in the garnishee’s hands subject to the attachment. Failing in this, the verdict ought to have been for the garnishee. If there was evidence to go to the jury on the question, which apparently was conceded by the court, the jury should have been permitted then and there to decide it. It was a question of fact raised by the pleadings and the court could not decide it by controlling the process issued on a judgment against the garnishee. If, in the opinion of the court, the evidence was insufficient to support the defense set up by the garnishee, the jury should have been so instructed, and, funds adequate to meet the claim having been shown to be in the garnishee’s hands, the verdict would be for the plaintiff and against the garnishee. That would have determined the issues which the jury were sworn to try and would have fixed the garnishee for the debt due the plaintiff by the judgment debtor. This was not a case for an interpleader. The garnishee was not a stakeholder, but denied that the funds of the defendant company which had passed into his hands belonged to the defendant at the date of the service of the writ. That was the issue which should have been determined on the trial and which the court could not determine by controlling the verdict or judgment in the plaintiff’s favor against the garnishee.

The first and second assignments of error are sustained, and the judgment is reversed with a venire facias de novo.