text:
    Black v. Woods, Appellant.

      Will — Construction—Survivorship.
    Testator devised certain real estate in trust for a son “and after his death to convey the same in fee simple to his issue, and, in case of his death without issue, then to convey the same to my surviving children share and share alike.” The cestui que trust died intestate, unmarried and without issue after the death of the testator. Held, that the words “to convey the same to my surviving children” referred to survivorship at the death of the testator.
    Argued Nov. 3, 1905.
    Appeals, No. 122, Oct. T., 1905, by George A. Woods and No. 123, Oct. T., 1905, by Harry Hays Woods, from decree of C. P. No. 1, Allegheny Co., June T., 1903, No. 103, decreeing specific performance in case of David P. Black v. Harry Hays Woods and George A. Woods, defendants, and Frank M. Woods et al., intervening defendants.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.

      Bill in equity for specific performance of contract for sale of real estate. The court decreed specific performance.
    The material facts'are stated in the following opinion of the court below:
    The question involved in this case is, whether under the will of the testator, William Woods, the real estate devised by the seventh paragraph and modified by the two codicils, is owned by the two defendants, Harry Hays Woods and George A. Woods, or whether Frank M. Woods and William A. Woods and the widow of Allen B. Woods, Jr., are entitled to a one-third share of said real estate. In other words, whether the words in the will, “ then to convey the same to my surviving children share and share alike,” refer to survivorship at the death of the testator, or to a survivorship at the death of the life tenant, William J. Woods.
    The general rule in Pennsylvania is and always has been that the words “ survivor ” or “ surviving ” following a prior gift are understood as referring to the ’death of the testator, unless an intent of the testator to refer them to some other time is plainly and manifestly shown, and this has become a rule of property : Mining v. Batdorff, 5 Pa. 503; Johnson v. Morton, 10 Pa. 245; Ross v. Drake, 37 Pa. 373.
    In Woelpper’s Appeal, 126 Pa. 562, the court states the general rule as follows: That the phrase, ‘ surviving brothers and sisters’ means ‘ surviving at the death of the testator,’ and that it shall be so construed unless it clearly appears that the testator meant it to refer to a different period.”
    And in Shallcross’s Estate, 200 Pa. 122, opinion by Mr. Justice Potter, it is said: “ The rule is well settled in Pennsyl- . vania that the period of survivorship is to be taken as the death of the testator, unless a contrary intent is apparent.”
    Again, as to the direction to convey. The question of testator’s intention as to who is to' take the ultimate bequest in case of the lapse is not affected by the fact that direction to convey was expressed in a trust. The question is one of substance and not one of form. In Snyder’s Estate, 180 Pa. 70, testator gave the residue of his estate to his executors in trust, at the. death of his wife to pay the income to his four children, in equal shares for their lives, and provided .as to the principal as follows : “ And upon tlie death of my above named children and as the same shall occur then in trust to pay over, grant and convey unto the respective children of my above named sons and daughters the principal or share of my estate, the income of which is devised for the benefit of their respective parents for life, etc.” In speaking of the effect of the trust, the court says on page 72 : “ The question here is not affected by the direction for conveyance at the expiration of the life estate. In England this would simply continue the legal estate in the trustees until the conveyance was made; here, where equity is part of the common law, it has not even this effect, and the legal estate vests at once in the beneficiary: Renziehausen v. Keyser, 48 Pa. 351; Bacon’s Appeal, 57 Pa. 504.”
    Not only, in our opinion, is there nothing in the will and codicils indicating that the testator refers to a survivorship at the death of the life tenant, W. J. Woods, but, on the contrary, we think that the will indicates that he intended the survivor-ship to take effect from the date of his death. The meaning is to be determined at the time he wrote his will, and the words are to be read with his expressed legal intention. In the earlier parts of the will the testator has named his children as “ my son, George A. Woods,” again, “my son, Harry Hays Woods,” and again, “ my son, Allen Boyd Woods;” these three sons and William J. Woods, the life tenant named in the seventh paragraph, were all the testator’s children, and when he named William J. in the seventh paragraph and made provision for him and his issue and in the same paragraph made provision for giving the property to his other children, “ my surviving children,” in case the gift to William J. should lapse, he evidently had in mind that all of his children should take an equal share whenever the lapse should occur, whether before his death or afterwards, and the words, “ my surviving children share and share alike,” referred to the children whom he had enumerated, namely, George A., Harry Hays and Allen Boyd. - The authorities cited by the able and learned counsel for George A. and Harry Hays Woods, do not change the general rule, but are in harmony with it.
    Our conclusions of law are:
    1. That the words in the seventh paragraph of the will of William Woods, viz.: “ then to convey the same to my surviving children share and share alike,” refer to and take effect from the date of the death of the testator, William Woods, and not from the death of William J. Woods, the life tenant.
    2. That the interest of Henry Hays Woods, in the real estate in controversy, is the one-third part in fee simple. The interest of George A. Woods is one-third part of the same in fee simple, and that the interest of Frank M. Woods, William J. Woods and Rose Woods, together as sole heirs at law of Allen B. Woods, is one-third part thereof in fee simple, and that on executing a general warranty deed to the plaintiff they are entitled to one-third of the purchase money for said real estate, to wit: the one-third of the sum of $40,000, and that each of these interests pay one-third the costs.

      Error assigned was the decree of the court.

      W. B. Rodgers, for appellants,
    cited: Steinmetz’s Est., 194 Pa. 611; Woelpper’s App., 126 Pa. 562; Reiff’s Est., 124 Pa. 145; Peirce v. Hubbard, 152 Pa. 18; McKee’s Est., 198 Pa. 255; Craige’s App., 126 Pa. 223; Adams’s Est., 208 Pa. 500 ; Theobald on Wills, 508, 511, 512.

      J. L. Ritchey, with him David S. McCann, for appellees,
    cited: Mull v. Mull, 81 Pa. 393; Lapsley v. Lapsley, 9 Pa. 130; Passmore’s App., 23 Pa. 381; Buzby’s App., 61 Pa. 111; Hopkins v. Jones, 2 Pa. 69; Crawford’s Est., 17 Pa. Superior Ct. 170; Cresson’s App., 76 Pa. 19; Reinoehl v. Shirk, 119 Pa. 108.
    January 2, 1906 :
   Per Curiam,

Decree affirmed on the opinion of the court below.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Vowinkel, Appellant, v. Moser.

      Husband and wife — Loan by wife to husband — Transfer of property for loan —Bankruptcy.

    In a proceeding by bill in equity by a trustee in bankruptcy to recover a leasehold transferred by the bankrupt to his wife in consideration of money loaned, the court below found as facts that the loan was of the wife’s own money, not received from her husband; that the transfer was on account of the loan and was made in good faith without intent to defraud; that it was not out of proportion to the debt; that the husband was solvent at that time and was not adjudicated bankrupt until more than a year later; and that it did not appear that any of his present creditors were creditors then. Held, that a decree dismissing the bill should be affirmed.
    Argued Nov. 3, 1905.
    Appeal, No. 203, Oct. T., 1905, by plaintiff, from decree of C. P. Allegheny Co., No. 1, Dec. T., 1902, No. 861, dismissing bill in equity in case of Charles Vowinkel, trustee in bankruptcy of Fritz Moser v. Fritz Moser and Margaret Moser, his wife, and Emma Wolff.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity to have declared void a transfer of property by a married woman to her husband. Before Collier, P. J.
    The essential facts are stated in the opinion of the court.

      Error assigned was decree dismissing bill.

      Charles II. Sachs, with him Benj. J. Hirshfield, for appellant.

      Edward J. McKenna and J. Frank McKenna, for appellees, were not heard.
    January 2, 1906:
   Per Curiam,

The learned judge below found as facts that the loan by the wife to her husband was of her own money received from other sources than her husband ; that the transfer of the leasehold by him to her was on account of the loan, and was made in good faith without any intent to defraud; that it was not out of proportion to the debt; that he was solvent at that time and was not adjudicated bankrupt until more than a year later; and that it did not appear that .any of his present creditors were creditors then.

These findings ought to have ended the case.

Decree affirmed with costs.


author: Mr. Justice Elkin,

text:
    Mattern, Appellant, v. Canevin.

      Taxation — Exemption from taxation — Mortgage held for religious or charitable purposes — Mortgage not bearing interest — Act of June 8, 1891, P. L. 229.
    It is the settled custom and policy of Pennsylvania to abstain from the taxation of property held for charitable and religious purposes. Such taxation will not be presumed to have been intended by the legislature in the absence of express language clearly showing such intention.
    A mortgage taken to secure the purchase money of a church building and held for religious and charitable purposes is not subject to the tax imposed by the Act of June 8, 1891, P. L. 229.
    It seems that a mortgage is not exempt from the tax imposed by the Act of June 8, 1891, P. L. 229, because it does not bear interest.
    Argued Nov. 3, 1905.
    Appeal, No. 204, Oct. T., 1905, by plaintiff, from order of C. P. No. 2 Allegheny Co., April T., 1905, No. 1069, discharging a rule for judgment for want of a sufficient affidavit of defense in case of R. G. Mattern, collector of delinquent taxes of the County of Allegheny, v. Rt. Rev. R. Canevin, Roman Catholic Bishop of the diocese of Pittsburg, Trustee for St. Paul’s Roman Catholic Congregation of the city of Pittsburg.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Elkin and Stewart, J J.
    Affirmed.
    Rule for judgment for want of a sufficient affidavit of defense. Before Frazer, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was the order discharging the rule for judgment.

      George H. Calvert, for appellant.

      Chas. D. Gillespie, for appellee.

      January 2, 1906 :
   Opinion by

Mr. Justice Elkin,

The single question raised by this appeal is whether the $1,000,000 mortgage given by H. C. Erick to secure the balance of the purchase money on the cathedral property, and held by the defendant for religious and charitable purposes, is subject to the personal property tax imposed by the Act of June 8, 1891, P. L. 229.

The present constitution requires uniformity of taxation upon the same class of subjects within the territorial limits of the authority levying the same, but ordains that “Actual places of religious worship ” and “ institutions of purely public charity ” may be exempted by law.

While the language of the constitution indicates that exemptions from taxation shall be provided by act of assembly, it has been held that actual places of religious worship and institutions of purely public charity may be exempt by necessary implication of law. In General Assembly v. Gratz, 139 Pa. 497, construing the act of 1889, it was held in an able opinion by the learned court below and affirmed by this court, that inasmuch as it had been the settled custom and policy from the foundation of our commonwealth to abstain from the taxation of property held for charitable and religious purposes, such taxation would not be presumed to have been intended by the legislature in the absence of express language clearly showing that such taxation was intended. In that case it was determined that under the Act of June 1, 1889, P. L. 420, funds held in trust not for particular persons, but for charitable and religious objects, in which no particular individual or person has any legal or equitable rights, the beneficiaries being selected from year to year at the discretion of the trustees, out of indefinite classes of persons, are not subject to the personal property tax, provided in said act. This decision was handed down January 19, 1891, and has been accepted and followed as the proper rule of law applicable to such cases from that time to the present.

There is no reason either in morals or law why it should be disturbed. Certainly the courts would not feel called upon to adopt a different rule of construction in the absence of legislative enactment which in clear and express terms should provide for the taxation of property so held. This has not been done. On the other hand, the act of 1891, which is a re-enactment of the act of 1889, except as to the rate of taxation, contains the identical provisions of the former act relating to the taxation of mortgages, moneys at interest and other personal property. The act of 1891 was approved June 8, almost five months after the rule had been announced in General Assembly v. Gratz, supra.

It is therefore reasonable to presume the legislature intended the rule in that case to be the settled policy of the state in reference to the exemption of actual places of religious worship and institutions of purely public charity from taxation. The facts of the present case do not distinguish it in principle from the case cited. Indeed, the facts of the case at bar more strongly favor the defendant here. This case was heard in the court below on a rule to show cause why judgment should not be entered for want of a sufficient affidavit "of defense. The facts set out in the affidavit must be accepted as established for the purposes of this case. In the third paragraph of the answer it is averred that:

“ Said mortgage was held by said trustee for said congregation solely for the same objects of religion and purely public charity that the real estate so sold was held, actually used and occupied as set forth in paragraph first thereof, and substituted therefor, viz:
“ The purchase of necessary ground and erection of churches or regular places of stated worship; parochial schools, wherein education would be extended gratuitously and without discrimination to all applying therefor, and such other edifices or buildings as might be needful or necessary for the other purposes and objects set forth in said first paragraph hereof, and to be so used, and that it was not held by said trustee for any other object or objects whatsoever, nor for the use, benefit or advantage of any person, persons, copartnership, unincorporated-association, company, joint-stock company, or association^ limited partnership, bank or corporation.”

With these admitted facts it is difficult to see under what theory the defendant can be held liable for the tax sought to be imposed. The mortgage was held by the trustee for the use of St. Paul’s Roman Catholic Congregation, “solely for the same objects of religion and purely, public charity” as the .real estate which had been sold and for part of which purchase price this mortgage was given. The “real estate” mentioned was the old cathedral property which it is conceded was used as an actual place of religious worship and for purposes of purely public charity. These conceded facts bring the case within the rule stated and the mortgage is exempt.

The learned court below has suggested that the mortgage is not subject to taxation because it did not bear interest during the year for which the tax is sought to be imposed. The taxation of mortgages under the act of 1891 does not depend upon their bearing interest. The mortgage in this case is exempt from taxation because of the uses and purposes for which it is held without reference to the question of interest.

Order of the court below discharging the rule to show cause why judgment should not be entered for want of a sufficient affidavit of defense is affirmed.


author: Pee Curia m:,

text:
    McDowell, Appellant, v. Lindsay.

      Conflict of laws — Foreign laws — Unconstitutionality—Public policy.

    The courts of Pennsylvania will not declare unconstitutional the statute of another state, in the absence of such construction by the courts of that state, where there is no question of public policy or general right involved.

      Corporations — Foreign corporations — Stock and stockholders — Subscription agreement — Contract for the p'urchase of stock — Statutes.
    There is a distinction between a subscription agreement and a contract for the purchase of stock. Subscribers, as generally understood, are those who, upon the formation of a corporation, agree mutually to take and pay for shares of the captial stock, and in the absence of any special provision, they agree with each other to pay therefor the par value of the stock.
    After the organization of a West Virginia corporation is completed, an individual may make an agreement to purchase stock from the corporation at any stipulated price, in such case the contract is binding on the corporation as well as the purchaser.
    There can be no recovery from the purchaser of stock in a West Virginia corporation who paid the corporation less than the par value of the stock, of the difference between the price paid and the par value, notwithstanding the failure to comply with the West Virginia act requiring the giving of notice of publication of the intention to present the resolution for the sale of the stock at less than par at the stockholder’s meeting, where the buyer of the stock was an innocent purchaser. Such a purchaser has the right to assume that all things necessary to be done were rightly done. The provision of the statute as to notice is merely directory, not mandatory.
    Argued Nov. 3, 1905.
    Appeal, No. 205, Oct. T., 1905, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1905, No. 160, for defendant on case stated in case of William S. McDowell, trustee in bankruptcy of the Pittsburg Automobile Co., v. Homer J. Lindsay.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Case stated in assumpsit. Before Kennedy, P. J.
    From the case stated it appeared that the company of which the plaintiff was trustee in bankruptcy was a corporation incorporated under the laws of the state of West Virginia. The board of directors by resolution authorized the sale of stock, the par value of which was §100 at §60.00 per share. The corporation at the time was in financial difficulties and the price was more than - the actual or market value of the stock. The defendant was not a stockholder prior to the purchase and the sale to him was made in good faith and the money received was used to meet pressing demands of creditors.
    A statute of West Virginia prescribed: “In no case shall stock be sold or disposed of at less than par .... until notice of the intention to present a resolution or motion authorizing the sale .... shall first be published for at least two successive weeks ” etc.
    Other material facts appear in the following opinion of the court below:
    This court will not declare unconstitutional the statute of another state, in the absence of such construction by the courts of that state, where there is no question of public policy or general right, unless forced to such a conclusion. The act of the legislature of West Virginia, the constitutionality of which is in question in this case, was passed in 1901, and does not seem to have been challenged in the courts of that state. Necessarily, it must have been considered constitutional by the legislative and executive departments of that state; under such circumstances, and in the absence of any other construction, we would follow that of the two departments named, unless the question is free from doubt. The provision of the constitution of West Virginia referred to declares stockholders liable “ to the amount of stock subscribed and unpaid, and no more.” It seems to us that there is a distinction between a subscription agreement and a contract for the purchase of stock. Subscribers, as generally understood, are those, who, upon the formation of a corporation, agree mutually to take and pay for shares of the capital stock, and in the absence of any special provision, they agree with each other to pay therefor the par value of the stock. But after the organization is completed, as in this case, an individual may make an agreement to purchase stock from the corporation at any stipulated price, in which case the contract is binding on the .corporation as well as the purchaser. Such is the nature of the contract in this case. It must be remembered that the defendant is an innocent purchaser. It seems, from the case stated, that both he and the corporation acted in the utmost good faith in the whole matter. The sale of stock was at the best price that could be obtained therefor, and the transaction was for the purpose of relieving the corporation from its embarrassment, which it did temporarily. There was no concealment to mislead creditors, yet the plaintiff, whose rights are no higher or greater than those of the corporation, seeks to repudiate the contract made with the defendant, and asks the court to compel him to perform a new and different contract which he never made, or intended to make. He seeks to have the contract declared void and to rescind the same without any offer of restoration. In our opinion, it makes no difference in this case whether the creditors’ claims arose before or after the issue of the stock to the defendant; if before, no reliance could have been placed on the stock as full paid, and if after, they cannot complain, as the transaction was open to them. Considering, then, as we do, the act to be constitutional, was the sale of stock to the defendant valid, notwithstanding the failure to comply with the act in giving notice of publication of the intention to present the resolution of sale at the stockholders’ meeting ?
    The sale to defendant was intra vires, for the statute gives the right to the corporation to sell its stock below par, and the failure to observe the formality with reference to the publication of notice does not make it ultra vires. The provision as to publication of notice is merely directory, not mandatory. Here again it must be remembered that the defendant is an innocent purchaser; He had the right to assume that all things necessary were rightly done, and the corporation and this plaintiff is estopped to deny that they were so done. We are of opinion that the defendant is not indebted to the plaintiff in any sum, and that therefore judgment must be entered for the defendant.
    It is so ordered.

      Error assigned was entry of judgment in favor of defendant.

      John M. Ralston, with him Frank W. Stoneoipher, for appellant.
    The term subscriber when applied to a stock transaction includes any person who contracts directly with the corporation to purchase stock: Greenbrier Exposition v. Ocheltree, 44 W. Va. 626 (30 S. E. Repr. 78) ; Perkiomen Brick Co. v. Dyer, 187 Pa. 470; Des Moines Bank v. Hotel Co., 88 Iowa, 4 (55 N. W. Repr. 67); Cookney’s Case, 3 De. Gex. & J. 170; Patterson v. Lynde, 106 U. S. 519 (1 Sup. Ct. Repr. 442) ; Lane’s App., 105 Pa. 49; Sawyer v. Hoag, 84 U. S. 610; Scovill v. Thayer, 105 U. S. 143; Flinn v. Bagley, 7 Fed. Repr. 785.
    The statute is unconstitutional: Aultman’s App., 98 Pa. 505.
    The provision of the statute requiring publication of notice is mandatory: Bladen v. Phila., 60 Pa. 464; In re Election of McDonough, 105 Pa. 488.
    G. D. Packer, for appellee.
    The constitutional provision relates to the sum of money subscribed for stock and not the par value.
    Courts follow or pay great deference to legislative or executive construction of constitutions: Moers v. Reading, 21 Pa. 188; People v. Green, 2 Wend. 266; State v. Glenn, 18 Nev. 34 (1 Pac. Repr. 186); Stuart v. Laird, 5 U. S. 299; Solomon v. Comr’s of Cartersville, 41 Ga. 157; Scanlan v. Childs, 33: Wis. 663.
    The defendant is not liable because of failure to give the statutory notice: Taylor on Private Corps. sec. 204; Turnpike Co. v. Ry. Co., 194 Pa. 144 ; Handley v. Stutz, 139 U. S. 417 (11 Sup. Ct. Repr. 530); Howard v. Bodington L. R., 2 P. D. 203.
    January 2, 1906 :
   Pee Curia m:,

Decree affirmed on the opinion of the court below.


author: Mr. Justice Mestbezat,

text:
    Reilly, Appellant, v. Crown Petroleum Company.

      Actions — Mesne profits- — Action for, after recovery in ejectment — Trespass —Assumpsit—Oil and gas lease.

    A plaintiff who by ejectment has recovered possession of land cannot maintain an action of assumpsit for the value of oil mined upon the land by the defendant while in possession. Trespass for mesne profits is' the appropriate remedy.
    Assumpsit cannot be sustained unless there is an express contract, or the facts are such that the law will imply a contract.
    Argued Nov. 3, 1905.
    Appeal, No. 206, Oct. T., 1905, by plaintiffs, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1905, No. 782, sustaining demurrer in suit of John C. Reilly et al. v. Crown Petroleum Company.
    Before Mito it-ere, C. J., Fell, Brown, Mestrezat, Erkin and Stewart, JJ.
    Affirmed.
    Assumpsit to recover mesne profits. The court below, Mo-Clung, J., sustained the demurrer to plaintiffs’ statement of claim.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in entering judgment for defendant, on demurrer.

      J. McF. Carpenter, for appellants,
    cited: Finney v. McMahon, 1 Yeates, 248; Lee v. Gibbons, 14 S. & R. 105; McCullough v. McCullough, 14 Pa. 295 ; Deysher v. Triebel, 64 Pa. 383; Dundas v. Muhlenberg’s Executors, 35 Pa. 351; Heaton v. Findlay, 12 Pa. 304; Balliet v. Brown, 103 Pa. 546 ; Bethlehem Boro. v. Fire Co., 81 Pa. 445; Kimble v. Carothers, 81 Pa. 494 ; Winton Coal Co. v. Pancoast Coal Co., 170 Pa. 437; Darrah v. Baird, 101 Pa. 265 ; Hindmarch v. Hoffman, 127 Pa. 284.

      B. B. Ivory, with him Charles Gr. Kislcaddon, for appellee,
    cited: Osbonrn v. Osbourn, 11 S. & R. 55; Drexel v. Man, 2 Pa. 271; Newell on Ejectment, 616; Irvine v. Hanlin, 10 S. & R. 219; Hopkinson v. Cooper, 8 Phila. 8; 15 Am. & Eng. Ency. of Law (2d ed.), p. 1112.
    January 2, 1906:
   Opinion by

Mr. Justice Mestbezat,

This is a demurrer to a statement in an action of assumpsit brought to recover $6,818.28, “ the profits of sales of oil belonging to plaintiffs.” The facts upon which the plaintiffs rely to sustain the action appear by the statement to be as follows : The plaintiffs were the owners of an oil and gas lease of sixty acres of land in Beaver county, Pennsylvania. While they were engaged in operating upon the land and producing oil therefrom the defendant company, in July, 1904, entered on the land and began preparations for drilling an oil well. The plaintiffs then served a written notice on the defendant company to the effect that they were the owners, by lease, for oil and gas purposes, of the premises, that the company must remove therefrom its drilling apparatus placed by it “ upon the said lease at or near the line of F. S. Laughlin, and upon a portion of the premises included in the lease,” and that it had no right to occupy the premises and must not drill thereon. The defendant disregarded the notice, refused to vacate the premises, and proceeded with the work of drilling a well which produced oil of the value above stated. The plaintiffs then “ brought an action of ejectment, which was so proceeded in that a verdict was recovered by plaintiffs against defendant on which judgment was entered and thereafter, on appeal to the Supreme Court, judgment was affirmed.” Having recovered possession of the land by the action of ejectment, the plaintiffs instituted this action of assumpsit to recover the value of the oil mined and taken from the premises by the defendant company.

The defendant demurred to the statement and assigned as cause of demurrer that “ the statement of claim discloses affirmatively that no contractual relationship existed between the plaintiffs and the defendant, and that if the defendant is accountable to the plaintiffs at all, such accountability arises upon an action for mesne profits, and therefore the action should be in trespass and not in assumpsit.” The learned court below sustained the demurrer and, in his opinion, correctly held that the only question raised by ¿¡he demurrer is : “ Can a plaintiff who, by ejectment, has recovered possession of land, recover mesne profits in an action of assumpsit?”

This question is settled alike by reason and authority. A plaintiff cannot maintain an action of ejectment when he is in possession of the premises. In bringing the action of ejectment, therefore, the plaintiffs admitted the defendant in possession of the land at least for the purpose of mining and producing oil and removing it from the premises. Tbe action resulted in a judgment ousting the defendant company from the possession for oil purposes which must be regarded as having been held adversely to the plaintiffs. During the time the defendant company held possession, it drilled the well and took the oil for which this action was brought. It is the profits or proceeds of the land taken by the defendant during its adverse holding of the premises which the plaintiffs have the right to recover. It is therefore clear that assumpsit will not lie. This action cannot be sustained unless there was an express contract or the law will imply a contract: Bethlehem Borough v. Perseverance Fire Company, 81 Pa. 445; Mc-Closkey v. Miller, 72 Pa. 151. Here, it is admitted, there was no contractual relation between the parties. It is also clear that the facts attending the possession of the premises and the taking of the oil by the defendant company are not such that the law will imply a contract on the part of the defendant company to pay for the oil which it took. On the contrary, the facts repel any inference of an agreement on the part of the defendant company to pay for the oil taken by it, and conclusively show that the defendant company had the actual adverse possession of the land for oil purposes during the time the oil was taken from it. Under such circumstances, the law will not imply a contract by the occupant to pay for the profits of the land taken during his adverse possession of the property.

It is well settled by á long line of decisions of this court that after a recovery in ejectment, trespass is the proper remedy 'to recover mesne profits of land taken by an adverse claimant in possession of the premises. Mather v. Trinity Church, 3 S. '&

R. 507, was trover for stone and gravel taken and removed from the land by a person in actual adverse possession of it. It was there held that neither troyer nor trespass would lie but that the plaintiff “ would not be without remedy, for he might first recover possession by ejectment, and then recover the mesne profits in an action of trespass.” Baker v. Howell, 6

S. & R. 475, was assumpsit for money had and received. The plaintiff sought to recover for sand taken by defendant from land to which both parties claimed title. The defendant sold the sand'and, as here, the action was assumpsit to recover its value. It was held that the action would not lie. These two cases were cited and followed in Brown v. Caldwell, 10 S. & R. 114, which was replevin for slate taken from a quarry on land “ in the actual, visible, notorious occupation and possession ” of the defendant who claimed the right to take the slate. It was held that ejectment was the plaintiff’s remedy and that replevin could not be sustained. Part of the reasoning of the court in this case has been criticised, but not the decision, which has been approved in Harlan v. Harlan, 15 Pa. 507. Trespass for mesne profits was the form of action in Ege v. Kille, 84 Pa. 333, which was brought, after a recovery of the land by the'plaintiff in ejectment, for profits derived from ore mined and carried away by the defendants.

In National Transit Company v. Weston et ah, 121 Pa. 485; the plaintiffs below, who were the defendants in error in this court, brought trover to recover the value of crude petroleum oil which had been produced upon a leasehold-held by one Gill and delivered to defendant company for transportation which redelivered it to Gill. The premises had been recovered by the plaintiffs from Gill by ejectment prior, to bringing the action against the transit company for the value of the oil. The trial court held that trover would lie but, on a writ of error, the judgment was I’eversed. In the opinion of this court, Green, J., says (p. 495): “The only remaining question is whether trover would lie.to recover the value of the oil removed from the premises by Gill during the period of his possession. He was certainly in the actual, adverse, hostile possession of the land, claiming by color of title, and removed the oil in the exercise of his colorable title. The oil was a part of the profits of the land, as much so as growing crops. . . . Prior to the Act of May 15, 1871, P. L. 268, neither replevin nor trover would lie for the recovery of articles severed from the freehold by an adverse claimant in possession, the proper remedy being ejectment, and for mesne profits.” This case was approved and followed in Giffin v. South West Pennsylvania Pipe Lines, 172 Pa. 580. That was an action of assumpsit to recover from the defendant, a pipe line company, the value of certain oil which had been produced on land not at the time in the possession of the plaintiff, but which was in the adverse possession of a company which produced and claimed title to the oil. This court held that the action would not lie and that a verdict should have been directed for the defendant. The syllabus of the case, which correctly states the decision, is that “ a part owner of oil land cannot maintain an action of assumpsit against a pipe line company to recover the value of oil delivered to the company by a person in possession of the land and holding adversely to the plaintiff.” In the opinion it is said (p. 585) : “ This being the state of the testimony, we think the case comes within the line of decisions of which the National Transit Company v. Weston, 121 Pa. 485, is a pertinent illustration, in which it was held that neither trover nor replevin would lie to recover the value of oil removed from the premises by one who was in the adverse possession of the land, during the time of his possession.” Green, J., in his opinion, cites the cases above referred to with others to sustain the principle and quotes at length from Justice Tilgiiman’s opinion in Mather v. Trinity Church, 3 S. & R. 507, in which it is held that trover will not lie for stone and gravel taken from land in the adverse possession of another, but that the proper remedy is ejectment for the premises and trespass for the mesne profits.

; The principle of the above cases is recognized in the very recent case of Crawford v. Forest Oil Company, 208 Pa. 5, which was trespass by the plaintiffs for the illegal taking and carrying away of oil from the premises by the defendant company. The case was tried before the court without a jury. The court found as a fact that at the time the oil was taken by the defendant company, the plaintiffs were in possession of the premises, and that there was no evidence that during that time the defendant was in adverse possession of the premises under color of title. It was held that trespass for the oil would lie. In the opinion of the trial court, approved by this court, it said (p. 15) : “ The wrongful taking of oil in the pipe' lines, if nothing more appeared in the case, would be the wrongful taking of personal property and either of the first two actions named (trover and trespass) would be a proper remedy; but if this oil, before it reached the pipe lines, had been severed by the wrongdoer from the land where nature stored it, then the wrongful taking of it would be a wrong that would involve the question of the possession of the land out of which the oil was taken, or of the oil in situ which is in a sense real estate. In the case at bar the defendant company severed the oil from the land, therefore we take it that the plaintiffs’ statement and the proof thereunder to sustain the action at bar ought to be sufficient to support either an action of trespass quare clausem fregit, or an action of trespass for mesne profits. To sustain either of these actions, title and actual possession or the right to immediate possession are involved. If the defendant is in possession and is a wrongdoer without claim of title, title and the right to immediate possession in the plaintiffs are sufficient to maintain an action of trespass quare clausem fregit. If the defendant is in adverse possession under color of title, the plaintiff must first establish his title in an action of ejectment. If. he succeeds and regains possession, then he is in position to maintain and prosecute to judgment an action of trespass for mesne profits.”

■ Applying the principles of these cases to the facts of the case in hand, we are clear that assumpsit will not lie for the oil which the defendant company mined and produced on the leasehold of the plaintiffs while the premises were in the actual adverse possession of the company.

The assignments of error are overruled and the judgment is affirmed.


text:
    Hershey’s Estate.

      Vendor and vendee — Real estate — Agreement to sell — Contract—Inability of vendor to make title — Refusal of wife to execute deed — Inability of vendee in possession for interest on purchase money — Interest—Husband and wife.

    Where lands are sold on articles of agreement and the buyer enters into possession and so continues, he must pay interest for the profits he is receiving during the vendor’s inability to make title.
    A husband and wife executed and acknowledged an agreement in writing agreeing to sell and convey real estate. The wife refused to sign the deed. The husband executed the deed and expressed his willingness to do whatever he could to complete the transaction. The purchaser refused to pay the consideration until execution of the deed by the wife. After the death of the husband his executrix presented a petition for a decree for specific performance. Held, that the purchaser was liable for interest on the purchase money.
    Argued Nov. 3, 1905.
    Appeal, No. 202, Oct. T., 1905, by The New York and Cleveland Gas Coal Company, from decree of O. C. Allegheny Co., April T., 1905, No. 304, sustaining certain exceptions and dismissing others in petition for specific performance of contract of decedent in estate of John Hershey, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to decree allowing interest on purchase money in proceedings to compel specific performance of a contract for the sale of real estate.
    From the record it appeared that John Hershey and his wife, by agreement in writing duly acknowledged and recorded, agreed to grant and convey to appellant certain lands owned by the husband. The wife refused to sign the deed but Hershey signed it and delivered possession of the lands to appellant and offered to do everything he could to complete the title. After Hershey’s death the wife, executrix, presented to the orphans’ court a petition praying for a decree of specific performance upon payment of the purchase money with interest.
    Other essential facts appear in the following opinion of Hawkins, P. J., of the court below:
    The rule has long been settled that where lands are sold on articles of agreement, and the buyer enters into possession, and so continues, he must pay interest for the profits he is receiving during the vendor’s inability to make title, for it would be grossly inequitable that the vendees should hold both land and money and compensate for neither. These and kindred circumstances raise an obligation to pay interest though the purchase money is not recoverable: Minard v. Beans, 64 Pa. 411. There may be cases where the vendee has been harassed and disturbed in possession; where there has been willful and vexatious delays or gross and criminal laches in the vendor which will raise an equitable defense in favor of the vendee : Fasholt v. Reed, 16 S. & R. 266. But nothing of this kind appears in the present case. On the contrary, all the equities are in vendor’s favor. The only question is whether or not the tender made by the vendee stopped the running of interest as against the vendor. The mere fact of formal tender is not conclusive of the vendee’s right. The right of the parties to specific performance is to be determined, not on the basis of common law, but on principles of chancery: Weise’s Appeal, 72 Pa. 351; Fry on Specific Performance, 1243, and the inquiry must therefore be into the equities of the parties. Prima facie the tender implied that Mr. Hershey was in default, but in view of the circumstances is this true ? From the beginning he manifested a willingness and readiness to do what his contract required. To use the language of one of vendee’s witnesses, he was “ always willing to do his part.” ' He not only signed the deed which vendee’s counsel had prepared, but put the vendee in actual occupation and use of the land; his vendee had a record title and was enjoying the fruition of his contract, and why should he not on his part enjoy the fruits of his contract. Because it is said that his wife refused to sign the deed. But he was in no sense responsible for her conduct; the policy of the law forbade coercion or compulsion on his part. In Riesz’s Appeal, 73 Pa. 485, where- the wife had refused to sign an instrument the court denied specific performance upon this ground. See also Burk v. Serrill, 80 Pa. 413. So far as the husband is concerned he was absolutely without power to compel conveyance. On the other hand, the vendee by accepting the agreement which Mrs. .Hershey had signed and acknowledged, and going into possession of-the land which was the subject of it, assumed the risk of her responsibility and had within reach the only means of enforcing that responsibility. But it is suggested that Hershey should have offered to convey whatever interest he had. “ He was always willing to do his part ” and he offered to do all and more than the contract required. It was not for him to offer an incomplete title. If respondent was willing to accept less than the contract called for the suggestion should have come from that source. The tender of the whole purchase price implied demand of the whole title, and no concession from this was offered during Hershey’s lifetime. But suppose such conveyance had been made, no loss could have resulted to the vendee during Hershey’s life, for he would have been entitled to whatever interest or profits might accrue during that period. A wife’s right to share in the profits of the land is contingent upon survivorship as widow, and she could do nothing then because by joining in the execution of the agreement óf sale she consented to the conversion of land into personalty and consequent extinction of her equity to dower. If there had been a decree of specific performance she could have had no right to any part of the purchase money, it must have been awarded to her husband as owner, and she must look to its distribution in the character of personalty on his death. The case is clearly distinguishable from Riesz’ Appeal, supra, and its class, by the fact of written relinquishment. On the other hand, the vendee by voluntarily coming into use and occupation of the land affirmatively waived, for the time being at least, conveyance of the legal title, and the fact that it afterwards made no move to exercise its power to enforce specific performance implies that formal conveyance was not yet of sufficient importance to stir action. It had accomplished its purpose so far as substantial enjoyment of land was concerned, and conveyance of the legal title was a mere matter of form which did it no hurt. Enforcement of conveyance was, as already suggested, not within Hershey’s power, but was available to respondent, if it wished to use it. It might, however, have waived conveyance, and, resting upon its equitable title and possession, safely paid the whole purchase money.
    The use and occupation of the land ought to have suggested an equivalent to Mr, Hershey, but even the custom of deposit of interest does not seem to have occurred to respondent. .From‘the date of taking possession of Hershey’s land, respondent has had complete command of the situation, and now seeks to take unfair advantage of it. It was grossly inequitable that respondent should retain both land and money and refuse to exercise its exclusive power to coerce Mrs. Hershey to specific performance. The loss of interest-was in no sense Mr. Hershey’s fault. He did everything possible for him to do, and more than his contract required, to carry out the sale. The remedy lay not in his, but in respondent’s discretion. If there was laches, it was not his but the respondent’s and respondent will not be permitted to take advantage of its own wrong. It follows that respondent is liable for interest on the whole purchase money for the period of its possession of the land until the present time.

      Error assigned was the decree of the court allowing interest on the purchase money.

      John P. Hunter, with him Sol. Schoyer, Jr., for appellant,
    cited: Jordan & Cooper, 3 S. &. R. 564.

      J. McF. Carpenter, for appellee.
    January 2, 1906 :
   Per Curiam,

The majority of the court affirm the decree on the opinion of the learned president of the court below.


author: Pee Ctteiam,

text:
    Brown’s Estate.

      Practice — Order of Supreme Court — Province of court below.

    Where in remanding a case to the orphans’ court the Supreme Court makes an order “for leave to parties to offer additional evidence as to the purpose for which the money represented by the checks in evidence .... was paid by the appellant to the decedent; and for leave to the orphans’ court thereupon to reconsider the case on that point” the order carries its limitation upon its face and the orphans’ court has bo authority to review the whole case over again.
    Argued Nov.' 8, 1905.
    Appeal, No. 192,. Oct. T., 1905, by Nattie W. McLean, from decree of O. C. Allegheny Co., May T., 1904, No. 54, dismissing exceptions to adjudication in estate of Joseph O. Brown, deceased.
    Before Mitchell, C. J., Fell, Brow, Mesteezat, Elkin and Stewaet, JJ.
    Reversed.
    Exceptions to adjudication. Before Hawkins, P. J.
    The essential facts are stated in the opinion of the Supreme Court and in a former report of the case, 210 Pa. 493.

      Error assigned was decree dismissing exceptions.

      D. T. Watson, with him Burleigh, Grray <j- Ohallener and Edmond Englert, for appellant.

      W. B. Rodgers, with him J. Rodgers Mo Creery, for appellee.
    January 2, 1906 :
   Pee Ctteiam,

When this case was here before, 210 Pa. 493, it presented two questions: First, did the appellant occupy such a confidential relation to the decedent as to require from her a higher measure of proof of her claim than is required in ordinary cases; and, secondly, was her claim made out ? On the first question the court were unanimously of opinion that there was no such confidential relation shown and the court below was in error in requiring more than ordinary proof. On the second question the majority of the court thought the claim made out, and the decree of the court below was therefore reversed with direction to allow the claim. In reaching this conclusion the majority of this court was largely influenced by the fact that appellant’s evidence, while not above criticism in some particulars, did on the whole present the only explanation offered of the uncontested fact that appellant had given the decedent more than $10,000 at times and in amounts approximately, though by no means accurately, corresponding to his purchases of the stock in question, and the only answer that met “ the vital and constantly recurring question, what was the money given to Brown for? ”

After the decision was rendered the executrix of decedent filed a petition for reargument, or an order remitting the ease to the orphans’ court “ to take additional testimony upon such points as this court may think proper, and afterwards enter a new decree.” Thereupon this court made an order in these terms, “April 10, 1905. Rule absolute for leave to parties to-offer additional evidence as to the purpose for which- the money represented by the checks in evidence amounting to $10,540.2T was paid by the appellant to the decedent': and for leave to the orphans’ court thereupon to reconsider the case on that point.”

This order was carefully drawn, and was intentionally made much more limited than the reargument asked for. It carried its limitation upon its face, and would seem explicit as judicial writing is always expected to be. But the court below appears to have totally misapprehended it, and, after receiving some ad-, ditional evidence as to other transactions, proceeded to review the whole cáse over again and reiterate its opinion that "the appellant had not made out her claim. This was beyond its authority. That point had been decided, and was not open to further question unless new evidence should show a better explanation of what the $10,000 were given to Brown for. ■ There was no such evidence, nor even effort to produce it. “ The suggestion ” said the learned president of the court, “ that because there did not appear to .have been any other transaction between the parties than the alleged purchase of Colonial stock, is not sustained by the facts. There were many trans- ■ actions, to which these checks might have been applicable.” There was no such suggestion. That, there had been other transactions was admitted in the first argument, and referred' to in the opinion of this court, “ what was the. money given to Brown for ? The only answer suggested is the conjecture that it was for some other transaction, the date, amount and character of which are not even suggested in the evidence.” It was to give., opportunity to supply some particulars of date, amount' or other kind, which would connect these other transactions with the - money admittedly given by appellant to Brown, that the case.' was. reopened. While it was freely conceded that the proof of.. appellant’s claim, was not beyond criticism, there was no proof at all that any of the other transactions had any connection whatever with the checks except the unsupported conjecture that they “ might have been applicable.”

Decree reversed, and appellant’s claim directed to be reinstated and allowed.


author: Mr. Justice Fell, Mr. Chief Justice Mitchell,

text:
    Commonwealth v. Johnson, Appellant.

      Criminal law — Murder—Evidence.
    On the trial of an indictment for murder a witness for the commonwealth will not be permitted to testify to statements made by a third party in the prisoner’s presence, tending to show the latter’s connection with the crime, which were immediately denied by him.
    Statements made in the presence of one accused of crime can be put in evidence against him only when his silence under the circumstances is ground for the inference of his assent to their correctness.
    On the trial of an indictment for murder,.it is reversible error to admit testimony to show the finding of articles of clothing on which was. fresh blood, on the bank of a creek a mile or more from the scene of the murder on the morning after it was committed, where there is no evidence to connect the clothes with the prisoner, or with the crime.
    Mr. Chief Justice Mitchell dissents.
    Argued Oct. 30, 1905.
    Appeal, No. 237, Jan. T., 1905, by defendant, from judgment of O. & T. Bradford Co., Dec. T., 1904, No. 13, on verdict of guilty of murder of the first degree in case of Commonwealth v. Charles Johnson.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Reversed.
    Indictment for murder. Before Fanning, P. J.
    The opinion of the Supreme Court states the case.
    Verdict of guilty of murder of the first degree on which judgment of sentence was passed. Defendant appealed.

      Errors assigned were various rulings on evidence.

      M. E. Lilley, with him W. P. Wilson, for appellant.

      Charles E. Mills, district attorney, and William Maxwell, with them Stephen II. Smith and David E. Kauffman, for appellee.
    January 2,1906 ;
   Opinion by

Mr. Justice Fell,

On the trial of the appellant for murder a witness for the commonwealth was allowed to testify to statements made by a third party in the appellant’s presence, tending to show IÚS connection with the crime, which were immediately denied by him. Statements made in the presence of one accused of crime can be put in evidence against him only when his silence under the circumstances is ground for the inference of his assent to their correctness. The statements offered by the commonwealth, having been promptly and explicitly denied, could not be received as tending to show an admission by the appellant. This is conceded. The attempt is to justify their admission on other grounds, that they were parts of a conversation between the witness, the appellant, and members of his family, the rest of which had been brought out by the cross-examination of the commonwealth’s witness; that they corroborated the appellant’s confession to burning the house after the murder had been committed; and that they showed contradictory statements on his part. They were not admissible for these nor for any other reason.

The testimony covered by the first specification of error was introduced in this way. A witness called by the commonwealth to prove a confession had been cross-examined to show the circumstances under which it had been made in order to lay ground for an objection to its admission. The appellant’s counsel was properly allowed on cross-examination to inquire as to previous conversations, the influence of which might have been present and operating on the appellant’s mind when the confession was made. At the close of this cross-examination the commonwealth’s counsel offered to prove that the appellant’s sister had said in his presence that she had seen him coming hastily from the direction of the fire on the night the murder was committed. This was objected to as irrelevant and because it was not proposed to show the whole conversation and the answer made by the appellant. The offer was then enlarged by adding: “ The defendant said in answer that Nancy was a damned liar.” The objection was then renewed by counsel and overruled by the court. This ruling permitted the introduction of a statement by a third party charging the appellant with the commission of a crime, which he promptly and emphatically denied. It was not evidence against him, and its admission calls for a reversal. The testimony which is the subject of the second specification of error is equally objectionable for the same reason. These errors into which the learned trial judge was inadvertently led because of the relation these statements were supposed to have to testimony already admitted were not cured by the statement in the charge that the prisoner was not affected by the accusation made in his presence, which he denied. It cannot be assumed that the effect of the accusation by a sister could be removed from the mind of the jurors in this way.

The ninth specification also must be sustained. It is to the admission of testimony to show the finding of articles of clothing, on which was fresh blood, on the bank of a creek a mile or more from the scene of the murder on the morning after it was committed. There was no evidence that connected these clothes with the prisoner or with the crime, and the testimony should not have been admitted. The judgment is reversed and a new venire is granted.

Mr. Chief Justice Mitchell,

dissenting:

I am of opinion that under the circumstances showing the connection with the prisoner and with the crime, all of the evidence was competent and was properly admitted. I would therefore affirm the judgment.


text:
    McCaffrey v. Knights and Ladies of Columbia, Appellant.

      Beneficial associations — Insurance—Application—Misstatement—Bisk— Married worn,an — Affidavit of defense.

    In an action against a beneficial association to recover death benefits, it appeared that the member was a married woman, and that at the time she made application for membership she was nineteen years old, and had been ten months married. The constitution and by-laws of the association provided that married women might bo members, and a condition printed on the back of the certificate showed clearly that the association anticipated the probability of the pregnancy of such a member during the life of the policy. An affidavit of defense filed by the association set up that the deceased falsely stated that she was not pregnant at the time the application was made. The affidavit asserted that she was pregnant, and that a few months afterwards she gave birth to a child, and “thereafter died from the effects of illness contracted during the time of her confinement.” The affidavit averred merely that this statement was material to the risk, but did not set forth any facts to show that this was the case, or that the association would have refused the risk, or increased the premium, if it had known the truth. Held, that the court committed no error in entering judgment for want of a sufficient affidavit of defense.
    A fact is material, to the risk when, if known to the underwriter it would have caused him to refuse the risk, or would have been a reason for his demanding a higher premium.
    Argued Oct. 31, 1905.
    Appeal, No. 149, Oct. T., 1905, by-defendant, from order of C. P. No. 1, Allegheny Co., June T., 1905, No. 116, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Patrick F. McCaffrey v. The Knights and Ladies of Columbia.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit for death benefits.
    ■ The.facts are stated in the opinion of the Supreme Court.

      Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.

      Marry Alvan Mall, for appellant.
    There can be no recovery on a policy where there has been a false representation of a material fact,.although the death of the insured was not produced by a cause connected with the subject of such representation: Hartman v. Ins. Co., 21 Pa. 466 ; Carson v. Metropolitan Life Ins. Co., 1 Pa. Superior Ct. 572; March v. Metropolitan Life Ins. Co., 186 Pa. 629; Lutz v. Metropolitan Life Ins. Co., 186 Pa. 527; Aicher v. Metropolitan Life Ins. Co., 6 W. N. C. 332; Meyers v. Woodmen of the World, 193 Pa. 470; Mengel v. Northwestern Mutual Life Insurance Company, 176 Pa. 280; Wall v. Royal Society of Good Fellows, 179 Pa. 355; Life Insurance Company v. Judge, 191 Pa. 484 ; Hermanyv. Fidelity Mutual Life Association, 151 Pa. 17.

      F. O. McGirr, with him John Marrón, for appellee.
    The misstatement was not material to the risk : Clason v. Smith, 3 Wash, C. C. Rep. 156; Vivar v. Supreme Lodge K. of P., 52 N. J. L. 455 (20 Atl. Repr. 36) ; Fitch v. Ins. Co., 59 N. Y. 557; Anders v. Supreme Lodge, 51 N. J. L. 175 (17 Atl. Repr. 119) ; March v. Ins. Co., 186 Pa. 629; Royal Neighbors v. Wallace (Neb.), 99 N. W. Repr. 256 ; Security Trust Co. v. Tarpey, 182 Ill. 52 (54 N. E. Repr. 1041).
    January 22,1906:
   Opinion by

Mr. Justice Mestbezat,

This was assumpsit brought by the plaintiff, Patrick F. Mc-Caffrey, to recover $1,500 which he alleges is due him as the beneficiary of his wife, Mary McCaffrey, to whom was issued a certificate of membership in the Knights and Ladies of Columbia, the defendant in this action. The certificate is dated December 11, 1903, and for the consideration therein named it was agreed that “ this Order will, upon satisfactory proof of the death of the above named member and upon the surrender and cancellation of this certificate pay to Patrick F. McCaffrey, bearing relation to her of husband, the sum of one thousand five hundred dollars.” Mrs. McCaffrey died August 19,1904. The defendant filed an affidavit of defense in which it is averred, inter alia, that in the application for membership in the order, Mrs. McCaffrey “ made misrepresentations and statements which were untrue in regard to matters material to the risk, in that.she replied, ‘No,’ to question No. 28, which was, ‘Is the applicant pregnant ? ’ thereby making a warranty to the defendant company that she, the said Mary McCaffrey at the time of her making such application for beneficial membership in the defendant order, on the 8th day of December, 1903, was not pregnant, when, as a matter of fact, she was pregnant at the time of making such application, and gave birth to a female child on the first day of May, 1904, and thereafter died from the effects of an illness contracted during the time of her confinement.” The plaintiff took a rule for judgment for want of a sufficient affidavit of defense which, after argument, was made absolute, and judgment was entered against the defendant. The sufficiency of the part of the affidavit of defense above quoted is the only matter requiring consideration here.

The first section of the Act of June 23, 1885, P. L. 134, 1 Purd. 1046, provides : “ Whenever the application for a policy of life insurance contains a clause of warranty of the truth of the answers therein contained, no misrepresentation or untrue statement in such application, made in good faith by the applicant, shall effect a forefeiture or be a ground of defense in any suit brought upon any policy of insurance issued upon the faith of such application, unless such misrepresentation or untrue statement relate to some matter material to the risk.”

A contract of insurance is to be interpreted by the same rules as is any other contract, and must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as such intention is ascertainable: 16 Am. & Eng. Ency. of Law (2d ed.) 927; Yoch v. Home Mutual Insurance Company, 111 Cal. 508. We think it clear that the company in issuing the policy did not regard the pregnancy of Mrs. McCaffrey either at the time of the application or during the life of the policy as material to the risk. A fact is material to the risk when, if known to the underwriter, it would have caused him to refuse the risk, or would have been a reason for his demanding a higher premium : Hartman v. Keystone Insurance Company, 21 Pa. 466. It is not claimed by the defendant company that it does not insure married women. On the contrary, the application and also the constitution and by-laws show that married women are admitted to beneficial membership in the order. Section 32 of the “laws of the supreme council ” provides that: “ All white persons of good moral character, who have arrived at the age of eighteen years, and who have not passed their fiftieth birthday, may be admitted as beneficial members.” And the following questions and answers in the application show that at the time it was made the assured was a married woman: “ Are you married ? Yes. If so, how long? Ten months.” We cannot assume that the pregnancy of a married woman would be regarded as material by the insurer in a beneficial company governed and controlled by such rules and regulations. As said by Judge Shabswood when in the district court of Philadelphia (Lefavour v. Insurance Company, 1 Phila. 558) : “ In insuring the life of a young married woman for the whole term of her natural life, the company must be presumed to know that, in the ordináry course of things, it is a peril she must expect frequently to encounter.” In this case the defendant knew from, the answers in the application that the assured was a young woman, nineteen years of age, and had been married ten months. It follows that the company, when it took the risk, must have expected the pregnancy' of the woman at the date of the application, or during the life of the policy. Not only is such the manifest conclusion from the facts stated, but one of the conditions printed on the back of the policy clearly anticipates the probability of her pregnancy during the life of the policy'. That condition is as follows : “ Tn case any female, who is a beneficial member of this order and the holder of this certificate, shall be attended at confinement or miscarriage by any midwife, or any one who is not a regularly licensed practitioner of medicine, and shall die or become totally disabled as the result of such confinement or miscarriage, then this certificate shall become null and void and of no binding effect upon this order.” It will be noticed that the failure even to comply with this condition of the policy will not avoid the contract unless the assured “ shall die or become totally disabled as the result of such confinement or miscarriage.” In the present case the affidavit of defense does not allege that the assured died as a result of her confinement but “from the effects of an illness contracted during the time of her confinement.” It is therefore apparent that, in entering into this contract, the company anticipated the probability of the pregnancy of the assured at some time during the continuance of the policy, and fully understood that the fact was not to affect the validity of the contract unless the assured failed during her confinement to observe the precautions set forth in the agreement. The pregnancy of the assured was clearly not material to the risk assumed by' the defendant’s policy.

In addition to the above consideration we may suggest that if the company' deemed the pregnancy of the assured material and desired to defend against the action on the ground that the answer to the question intended to elicit that information was false, the affidavit should have stated the facts from which the materiality of the question and answer could have been determined by the court. It is well settled that an affidavit of defense is bad which states a conclusion of law without giving the facts from which the court can determine the law of the defense. This affidavit merely avers that the pregnancy' of the assured was “ material to the risk.” This was simply a conclusion. The fact of the assured’s pregnancy would only be material, as we have seen, if being disclosed to the underwriter it would have caused him to refuse the risk or to demand a higher premium. Unless such would have resulted from his knowledge of her pregnancy at the time the policy was written, the fact would not have been material to the risk, and consequently an untrue answer to the interrogatory would not have avoided the contract. It was therefore incumbent upon the defendant to §et out in its affidavit of defense that the knowledge of the assured’s pregnancy would have caused the underwriter to refuse the risk or to have increased the premium. Had it done so, the question would have been for the juiy as in Lefavour v. Insurance Company, 1 Phila. 558.

The judgment is affirmed.


author: Mr. Justice Potter,

text:
    Goodwin, Appellant, v. Colwell.

      Trusts and trustees — Trust ex maleficio — Executor—Power of sale — Decedents’ estates — Jurisdiction of equity — Jurisdiction of orphans’ court — Real estate.

    Where an executrix with a discretionary power of sale under a will containing no trusts, sells real estate situated in the county of decedent’s domicil, and wrongfully invests the proceeds thereof in her own name in real estate situated in another county, and thereafter leaves the state, the court of common pleas of the county wherein the purchased real estate is situated, has jurisdiction in equity to declare that the executrix holds such real estate as a trustee for the beneficiaries under the will.
    Argued Nov. 2, 1905.
    Appeal, No. 174, Oct. T., 1905, by plaintiff, from decree of C. P. No. 2, Allegheny Co., Oct. T., 1904, No. 1697, dismissing bill in equity in case of P. O. Goodwin and Ethel Hunter v. Mary Jane Colwell, Executrix of Elizabeth McKinley, deceased, and Executrix of Mary McKinley, deceased, and Nancy Jane Colwell, alias Nancy J. Caldwell.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Bill in equity to declare a trust in real estate.
    Demurrer to bill.
    The averments of, the bill and grounds of demurrer are stated in the opinion of the Supreme Court.

      .Error assigned was decree sustaining the demurrer and dismissing the bill.

      M. J. ITosaeJc, with him George M. Hosaclc, E. O. Eighee, W. E. Brown and Roger Knox, for appellants.
    The common pleas as a court of equity had jurisdiction: Shollenberger’s App., 21 Pa. 337; Whiteside v. Whiteside, 20 Pa. 473; Black v. Black, 34 Pa. 354; Fidelity Ins. Trust & Safe Dep. Co.’s App., 99 Pa. 443; Burt v. Herron, 66 Pa. 400; Hall’s App., 112 Pa. 42.

      Alvin C. Spindler, with him E. E. Kiernan, for appellees,
    cited: Brown’s App., 12 Pa. 333; Erie Dime Saving & Loan Co. v. Vincent, 105 Pa. 315; Engel’s Est., 180 Pa. 215 ; Wapples’s App., 74 Pa. 100.
    February 5, 1906:
   Opinion by

Mr. Justice Potter,

It appears from the averments of the bill in equity here filed, that Mary Jane Colwell, one of the defendants, acting under powers contained in the wills of Mary McKinley and Elizabeth McKinley, residents of Armstrong county, sold certain real estate situate in that county, and afterwards removed to Allegheny county. She there made use of the funds arising from the said sale, to purchase other real estate in Allegheny county and took title to it in her own name and in that of her daughter. She has refused to declare a trust, and has of late removed from this state, and gone to reside in California.

The bill prayed (1) that defendants be restrained by injunction from selling, conveying, encumbering or disposing of, in any way, real estate situate in Allegheny county; (2) that the defendants be decreed to be trustees of the real estate; (3j) that Mary Jane Colwell account to F. O. Goodwin; (4) that Mary Jane Colwell account to Ethel Hunter; (5) that a re-' ceiver be appointed to collect the rents accruing from said property and to take and hold any assets or property that may bo found belonging to the estate of Mary McKinley and Elizabeth McKinley; and (6) such further and equitable relief as the court may deem meet.

The defendants demurred to the bill, for the following causes: (1) That upon the face of the bill defendants are not liable to plaintiffs; (2) the plaintiffs have not shown any cause entitling them to the relief prayed; (3) the executrix, Mary Jane Colwell, was “ empowered with full and absolute discretion in the sale, management and disposition of the said estate ; ” and (4) that a court of equity has no jurisdiction of the said bill, for the reason that Mary Jane Colwell is a testamentary trustee whose office is annexed to that of executrix and is, therefore, amenable alone to the orphans’ court:

The court below sustained the demurrer and dismissed the bill, but filed no opinion. We are, therefore, without any information as to the reasons upon which the court based its action. The third cause, set forth in the demurrer, is not good; for' while the power to sell at her discretion was complete, yet no right was given to the executrix to use the funds at her own discretion.

The property was devised to six persons, of whom the executrix was but one; and it was to be equally divided among them.

The fourth reason assigned in the demurrer is that the power of sale is created by will, and, therefore, the jurisdiction is exclusively in the orphans’ court. But in this case the trust property is in another county and is outside the jurisdiction of the orphans’ court having original control over the executrix. If equitable relief is then, to be administered, it must be through the courts of Allegheny county, where the land lies that is sought-to be declared within the trust: Van Dyke’s Appeal, 60 Pa. 481. “ The mere possession of the property of a decedent, even under circumstances from which a trust will be implied, does not of itself give the orphans’ court jurisdiction over the person holding such property: ” Delbert’s Appeal, No. 2, 83 Pa; 468.

The jurisdiction of the court of common pleas sitting in equity, to establish a right under a will is maintained in Hall’s Appeal, 112 Pa. 42. We think that in the present • case, the tight of the plaintiffs to maintain this bill cannot be questioned. Its purpose is not primarily to compel the distribution of an estate, but it is to have a trust declared for the benefit of those entitled thereto.

If the executrix were within the jurisdiction of the orphans’ court she could of course be required to account for the proceeds of the sale of the real estate of the decedent. But she has removed permanently from the jurisdiction, and that court has no longer any control over her person, and would be without power to enforce its decree. The orphans’ court of Armstrong county has no jurisdiction over real estate in Allegheny county, and there is no statute that would confer upon the orphans’ court of Allegheny county, any power whatever in regard to the settlement of the estate, or the preservation of its assets.

The wills here in question raised no trust. The devisees took absolute interests in the entire estate immediately upon the death of the surviving testatrix. When the real estate was sold under the power of sale, the money became substituted for the land. If it was improperly used by the executrix to purchase property in Allegheny county, as alleged in the bill, then that property belonged to the devisees, and the parties holding the legal title are trustees for them, and the devisees are entitled to the aid of a court of equity to declare the trust, and to prevent the property from being sold, and its proceeds removed from the state. The trust would be one ex maleficio, with which the orphans’ court has nothing to do. The only court that can give the necessary relief, under its equity powers, is the court of common pleas of the county where the real estate is located.

The assignments of error are sustained, and the judgment of the court below upon the demurrer is reversed; and it is ordered that the bill be reinstated, and that the record be remitted to the court below for further proceedings.


text:
    Kees, Appellant, v. Clark.

      Statute of limitations — Practice, C. P. — Delay in issuing pluries writ in assumpsit — Process.
    Where a plaintiff in assumpsit delays for over six years in issuing a pluries writ after an alias writ has been returned non est inventus, the pluries writ will be quashed. In such a case the statute of limitations will bar a further prosecution of the action.

      Practice, C. P. — Reservation of question of law.

    A reservation of a question of law “whether under the record and the evidence in the case, there is any evidence entitling the plaintiff to recover,” is in proper form.
    Argued Nov. 2,1905.
    Appeal, No. 175, Oct. T., 1905, by plaintiffs, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1892, No. 167, on verdict for defendant non obstante veredicto in case of Mary Rees et al., Executrix and Executors of James Rees, deceased, v. Lewis N. Clark et al.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit for material and work. Before Rodgers, J.
    The facts are stated in the opinion of the Supreme Court.

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

      J, S. Ferguson, with him E. G. Ferguson, for appellant.
    A long delay after instituting a suit may be evidence of abandonment, and the court might not compel the defendant to plead. But this advantage is waived by pleading issuably and going to trial: Hemphill v. McClimans, 24 Pa. 367; Bell’s Appeal, 115 Pa. 88; Waring v. Penna. R. R. Co., 176 Pa. 172.
    The presumption is a presumption of abandonment: Biddle v. Girard Nat. Bank, 109 Pa. 349.
    Instead of being the inception of a further suit, an alias- or pluries at the common law is but a continuance of the process : Lynn v. McMillin, 3 P. & W. 170.
    The case as presented shows a verdict for the plaintiffs for a specific sum of money. The reservation of the question undoubtedly is bad: McCormick v. Royal Ins. Co., 163 Pa. 184.

      James T. Buchanan, for appellees, was not heard.
    February 5, 1906 :
   Opinion by

Mr. Justice Potter,

This was an action of assumpsit brought by the appellants who are the executors of J ames Rees, deceased, against Lewis N. Clark, W. B. Sneathen and William T. Brenneman. The original summons was issued November 5,1891, to tbe first Monday of December, 1891, and was returned “non est inventus.” Plaintiffs’ statement of claim was filed at the same time the summons issued. On September 5, 1893, an alias summons was issued to the first Monday of October, 1893, which was also returned “ non est inventus.” On September 18,1901, a pluries summons was issued to the first Monday of October, 1901, which was duly served on all the defendants. On November 16, 1901, on petition of W. B. Sneathen, one of the defendants, a rule was granted to show cause why the writ should not be quashed and the suit discontinued, which rule, after answer and argument, was discharged. Subsequently, judgment by default was entered against the defendants, Clark and Brenneman, and the case was put at issue against Sneathen, the third defendant. On October 17, 1904, a jury was called, and on October 19, a verdict was rendered for the plaintiffs for |9,410.36, subject to the question of law reserved, “ whether under the record and the evidence in the case, there is any evidence entitling the plaintiffs to recover against W. B. Sneathen.” On February 27, 1905, judgment was entered for defendant and against plaintiffs non obstante veredicto.

The reason for entering judgment for defendant, is thus stated in the opinion of the court below: “ In the case at bar, plaintiffs allowed a period of more than eight years to intervene between the issuing of the alias and the pluries summons, and a period of almost thirteen years between it and the time that the right of action accrued. It is our opinion, therefore, that plaintiffs, having allowed a period of more than six years to pass, during which time they have made no attempt to continue the process already issued, this action must be considered as discontinued and plaintiffs out of court; the plea of the statute of limitations being a bar to their right to recover on the pluries writ.”

In reaching this conclusion the court below relied upon the reasoning and the principles set forth in the line of cases beginning with Jones v. Orum, 5 Rawle, 249, where a period of ten years intervening between the issuance of the writs, it was held that the suit was discontinued, and defendants were out of court. In McClurg v. Fryer, 15 Pa. 293, a period of a little more than four years was held to be in time to bar the statute. In Curcier’s Estate, 28 Pa. 261, the time intervening between the writs was fifteen years; and - it was held that the suit was not properly continued, and the running of the statute was not tolled. Judge Black there says that it is not safe to delay the alias for more than six years after the original writ is taken out, and he adds, “ there is no case in our own books that has allowed a suit commenced in this way to be kept alive by continuances, without an alias in less than six years.”

We think the conclusion reached by the trial judge in this case, was entirely correct.' If we have any regard to the principle upon which the statute of limitations is founded, we must hold that it is not sufficient for a plaintiff to bring his action and then remain inactive for an indefinite period. As the legislature has prescribed the term for the commencement of a suit, to bar the statute, we are of the opinion that both reason and authority require that in order to continue the action and prevent the defendant from claiming the protection of the statute, an alias writ should be issued within a like period from the date of the original summons.

It is suggested in the argument, that the reservation of the question of law, was bad, but, under the rules laid down in Casey v. Paving Co., 198 Pa. 848, the reservation is unquestionably good.

The assignment of error is overruled and the judgment is affirmed. •