text:
    Taggart versus The Commonwealth.
    In a conviction on indictment for placing a nuisance on a public highway, the defendant maybe sentenced to pay a fine and the costs of prosecution and stand committed until the sentence be complied with.
    At November Sessions, 1850, James Taggart, the plaintiff in error, was indicted for a nuisance in erecting a store-house on part of a public alley in the borough of Northumberland; and on November 8, he was found guilty. On the same day a motion for a new trial was made, which was overruled. On the 14th November, 1850, a paper, dated the 13th November, was filed, containing the following as the sentence of the Court, viz., “ The sentence of the Court is, that James Taggart, the defendant, abate the nuisance set forth in the indictment, on or before the 1st day of .the next Court of Quarter Sessions of this county, and pay a fine of six cents and the costs of prosecution, and stand committed until the sentence of the Court be complied with.”
    The defendant was not arrested, and Anthony, the President Judge, died. The office of the sheriff expired.
    At April Sessions, 1852, ITegins, President Judge, after argument on a rule to show cause why an attachment should not issue against the defendant for contempt in not complying with the sentence of the Court, directed the sheriff to arrest the defendant and to detain him in custody until the sentence of the Court be complied with.
    In July, 1852, the defendant was arrested. A writ of habeas corpus was obtained from the Supreme Court, then in session a,t Sunbury, and a hearing was had before a majority of the judges, on the allegation that the sentence was illegal. In order to afford the defendant an opportunity of having the sentence reviewed on writ of error, the defendant was bound in recognisance to comply with the sentence by abating the nuisance or surrender himself to the sheriff of Northumberland county on or before the 25th of July, 1853.
    A writ of error was obtained, and at July Term, 1853, a hearing was had.
    It was assigned for error:
    1. The Court erred in giving sentence in the absence of defendant.
    2. In sentencing the defendant to abate the nuisance set forth in the indictment on or before the first day of the next Court.
    3. In sentencing him to stand committed until the sentence was complied with.
    4. In directing the sheriff to arrest the defendant upon the motion for an attachment on 8th April, 1852.
    There was not on the paper-books any copy of the indictment or of the record.

      Gtreenough, with whom was Miller, for the plaintiff in error.—
    It was said that the defendant was not present at the time sentence was pronounced: Dunn v. Commonwealth, 6 Barr 388, cited. When corporal punishment is to be inflicted, the defendant should be present when sentence is pronounced. Imprisonment is corporal punishment: 1 Chitty C. L. 664, 695-6; 12 Wend. 344; 7 Cow. 625; 6 Barr 387-8; Sup. U. S. Dig. 419, Pl. 39. When a defendant is to be committed to prison till a fine is paid, it should appear upon the record that he was present in Court at the time: 1 Ch. Cr. L. 696; 1 Raymond 47-8.
    As to the sentence. It was said that if the defendant be committed to prison, he cannot remove the nuisance, and the object of the law may not be effected. It was contended that the Court should execute its judgment by its own officers, and that in convictions for nuisance the usual sentence is that defendant pay a fine, and that the nuisance be, abated: 8 Term Rep. 144; Rex v. Stead, 7 Id. 468; 1 Strange 686; 1 Chitty Cr. Law. 716. In Respublica v. Arnold, 3 Yeates 423-4, the sentence was to pay a fine and the costs of prosecution; and that the sheriff do forthwith abate and alter the dam, so as to bring the same within, &c.
    As to the 4th error. It was said that when a sheriff had not complied with an order of Court,- it is reasonable that he should have an opportunity of showing why he has not complied; but it was contended that the Court had no authority to cause the defendant to be brought back into Court to receive corporal punishment : 1 Salk. 400; 1 Chitty 695; 1 Raymond 267. In an assize of nuisance the process to have the judgment executed is distringas, and not imprisonment: 1 Rawle 44, Barnet v. Ihrie.

      Pleasants, on the part of the Commonwealth.
    — The sentence, of the Court, until reversed, could have been enforced by the sheriff; and the omission of the sheriff to perform his duty did not relieve the defendant from liability to arrest. It was said that the Court acted properly in granting a rule upon the defendant to show cause why an attachment should not issue against him, and afterwards in ordering the sheriff to arrest the defendant. It was said that the sheriff had authority, under the original sentence, to make the arrest.
    Also, that it did not appear from the record that the defendant was not present at the sentence. No objection was made on that account to comply with the pecuniary part of the sentence. It was said that it was not usual with the clerk to note the presence of the defendant in Court, except in case of crime of high degree.
    The sentence was not inconsistent with itself. By the sentence the defendant was not to be imprisoned until the expiration of the time limited for abating the nuisance. If the sentence -was erroneous, this Court was asked to pass the proper sentence: 6 Watts 513; 5 Barr 221. By Act of 16th June, 1836, sect. 1, it is provided that “ this Court shall have power to examine and correct all.errors of the Courts of this Commonwealth in proceedings, judgments, and decrees, as well in criminal as in civil cases, and to reverse, modify, or affirm,” &c.: 7 Barr 371; 1 Wh. 281. Where in case of assault the sentence was enforced by subsequent order of the Court, held to be proper: 4 U. S. Dig. 419 ; Pl. 25.

    May, 1854. — The opinion of Lewis, J., in which Woodward, J., concurred, was filed, and at the en’suing term at Sunbury, Knox, J., also concurred.
   The opinion of Lewis, X, was as follows:—

Lewis, J.

— The plaintiff in error was convicted of placing a nuisance in a public street in the borough of Northumberland. He was sentenced to abate it at his own costs, and was ordered to stand committed until the sentence be complied with. It is alleged that this is erroneous, and that the nuisance ought to be abated by means of a writ directed to the sheriff. In looking for authorities to support this sentence, it is certainly going far enough back when we draw from the black letter lore of Rolle’s Abridgment. It is there declared, in the Norman Erench then in use, that “ Si home soit convict d’un nusans fait al hault chemyn le roy, il serra command, per le judgment, a remover le nusans a son costs demesne”: 2 Rolle’s Abr. 84, sec. 15. Here we have the ancient common law, declared by one of its most approved writers. It tells us expressly that if a man is convicted of a nuisance done in the king’s highway, he shall be commanded, by the judgment, to remove the nuisance at his own costs. He cites authorities to support his position. Other writers of eminence have, from time to time, affirmed the same principle. It is so declared in 3 Binns’ Justice, 222. The same language is used in Hawkins’ Pleas of the Crown, 1 Hawkins 365, ch. 26, see. 14. In Russel on Criminal Law, the same principle is stated in language equally distinct and positive: 1 Russ. Crim. L. 331. Thus, ancient and modern authorities concur in their sanction of the sentence which was pronounced in this case. Where the indictment is at common law, as this was, we know of no decision that such a sentence is illegal.

The rule varies where statutory provisions- require it. Where a party has a license to erect the structure complained of, and the nuisance convicts in exceeding his privilege, the sentence is not to remove the building altogether, but to make it conform to the license. In such cases it is usual to issue a writ to the sheriff, commanding him to execute the judgment. Respub. v. Arnold, 3 Yeates 423, was a case of that kind. The sentence in that case could not he pronounced according to the common law, because the defendant, after conviction and before sentence, had procured an Act of Assembly, which authorized him to continue the dam complained of, upon the terms prescribed in the Act. All that could be done in such a case, was to see that the dam was made to conform to the provisions of the statute which authorized its continuance. This case, therefore, furnishes no precedent whatever for sentences at common law. The case in 11 Pick. 452, relates to the judgment in a civil action under a statute of Massachusetts, which authorized the sentence and prescribed its form. The case in 1 John. Cases 336, decides nothing which touches the question. So far from it, the Supreme Court declined expressing any opinion whatever, because the record had not been returned. In 1 Strange 688, an “old booh of forms” is cited, in which, as the counsel informs the Court, it is stated that judgment was-given in an assize of nuisance, that the nuisance should be removed and the ditch filled up (quod nocumentum praed. amoveatur et trenchea praed. obstruatur), without mentioning by whom or at whose costs it was to be. done. As this was not the particular point under investigation, the citation may not have embraced all that the case contained in relation to it; the book itself is not known as a work of authority, and the decision reported is in an assize of nuisance, and not an indictment. It has therefore no application to the question before us. These are the cases which have been relied upon to show that the sentence is erroneous; but they fail in pertinency to the question before us, and do not in any manner impair the influence of the distinguished writers already cited in Support of the judgment of the Court below. When the law is settled, judges ought not to unsettle it, except upon the most urgent necessity. But when it is rightly settled in a way that promotes justice and accords with the public convenience,, there is no justification whatever for disturbing it.

But we are told that it is very hard to commit the defendant until he complies with the sentence, and that he cannot abate the nuisance while he is in prison. Doubtless it is so; but “ the way of the transgressor” is always “hard.” The sentence was not intended so much for his convenience as for that of the public whose rights he has violated. Every convict who has been sentenced to pay a fine, or costs, or to restore stolen goods, might make the same complaint. While confined in jail he cannot personally go to his desk at home to procure the money to pay the fine and costs; nor can he proceed to the place where the stolen goods are concealed for the purpose of restoring them to the owner. As he has voluntarily subjected himself to the inconvenience, he must be content to transact his business by agents. The plaintiff in error could very easily surmount, the difficulties of his case in this way, even if he had been actually imprisoned under the sentence. But he has had the good fortune to avoid this inconvenience thus far. It is not probable that a gentleman unaccustomed to the labor of erecting or prostrating buildings would rely much on his own personal exertions in abating a nuisance like the one complained of here. But whatever the inconveniences of the case may be, they should have been considered by the defendant below before he subjected himself to them. In this case it might be safe enough to trust to the personal engagement of the party to comply with the sentence: but the rule of the law has been established for those in whom it has not quite so much confidence. This objection to the sentence has been urged with such sober earnest, that we have felt bound to notice it; but it would be more appropriately addressed to the legislative department. As soon as the legislature think proper to abolish imprisonment for crimes, we shall be ready to enforce the new enactment in the manner which may be prescribed. But at present we have to execute the law as it now exists.

In what is said, we do not wish to be understood as denying the power of the Court to issue a writ commanding the sheriff to abate the nuisance. On the contrary, this is the proper course, if the defendant fails to comply with the sentence. But to justify the writ, the judgment of abatement should be pronounced in the manner already indicated. No writ of execution can legally issue without a judgment to support it: 8 T. M. 144. If the defendant fails to comply with the sentence, and the nuisance, in consequence, be abated by the sheriff, the imprisonment should continue until the costs and charges of that proceeding be paid, or the defendant be otherwise legally discharged. Those who place nuisances in the highway, ought to bear the charges of removing them.

There is nothing in the other errors assigned.

Judgment afErmed.

Black, C. J., and Lowrie, J., dissented. The dissenting opinion of the Chief Justice has been filed.


source: Caselaw Access Project

author: Mr. Justice Potter,

license: Public Domain

text:
    Gillespie, Appellant v. Iseman.

      Contract—Lease—Natural gas—Construction contract by parties.

    Where a natural gas lease provides that the lessee shall equip the house of the lessor for the use of natural gas and shall furnish gas free of cost, the lessee is not bound to furnish gas free for light outside of the house and not connected in any way with the house.
    Where the lessor and his immediate predecessor in title have acquiesced in this construction of the lease, a subsequent owner will not bo permitted more than six years after the date of the lease to place a different construction upon it.
    Courts will, if they can, give to the contracts of parties the exact effect which the parties themselves gave to them, and interpret them just as they interpreted them.
    Argued Oct. 11, 1904.
    Appeal, No. 185, Oct. T., 1904, by plaintiff from judgment of C. P. Armstrong Co., March T., 1908, No. 215, on verdict for defendant in case of E. N. Gillespie to use of the Enterprise Natural Gas Co. v. Simon Iseman.
    Before Mitchell, C. J., Dean, Fell, Brown, Potter and Thompson, JJ.
    Reversed.
    Assumpsit to recover the value of natural gas.
    The facts are stated in the opinion of the Supreme Court.
    The court charged in part as follows :
    [So we submit to you the testimony of Robert W. Shoop while on the witness stand, as to what connection he bad with this company, and what he did and said when talking to Mr. Iseman about this matter, to decide whether or not this gas company clothed him with apparent authority to act in their behalf'.] [4]
    Now gentlemen of the jury, I submit that testimony to you to say whether or not Robert W. Shoop was clothed by this plaintiff company with apparent authority to speak for it. If you find, from all the evidence in this case, that he was, then his declarations would be binding upon the plaintiff company.
    [If you find that Robert W. Shoop was clothed with apparent authority by this company to make this declaration and that he did make it, and on the faith of that declaration Mr. Iseman used this gas, believing that he would not have to pay for it, then the plaintiff cannot recover.] [5] But if you believe the testimony of Robert W. Shoop and his father, that they gave no such consent, then Mr. Iseman would not be exonerated from paying for the gas he thus used.
    [The second ground of defense that Mr. Iseman sets up is that under the terms of this contract he was not bound to pay for using gas in this outside light. The contract, or that part of it, reads as follows : “ It is further agreed that the party of the second part shall equip the house of the party of the first part for the use of natural gas, and shall furnish gas.free of cost, providing gas is found in paying quantities.” The material part of that is this : “ shall furnish gas free of cost,”— how furnish it and where ? Now if that was a clear expression, for instance, if it said that Mr. Iseman was to use gas inside of his dwelling house, or that he should use gas only in his cook stove, or that he should use gas in four dwelling-house fires, then the contract would be plain and the court would have to construe the contract and could not allow the jury to say what the contract meant. But, in the opinion of the court, this contract is ambiguous. It says “ shall furnish gas free of cost,” but does not say whether inside or outside of the house.] [6]
    [As we understand the law, it is for the jury to say, taking into consideration the situation in which the parties stood and the things for which they would naturally provide, and taking into consideration the condition in which Mr. Iseman, or rather Mr. Meenan at that time lived, and the nature of his farm and his buildings on the farm, and the way in which people in the country ordinarily use natural gas, and what wants and necessities Mr. Meenan was providing for, how did the parties understand this contract in the light of surrounding circumstances at that time.] [7]
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned among others were (4-7) above instructions, quoting them.

      James TL Me Cain, with him W. J. Christy, for appellant.
    The written contract sued upon in this case is not such a one as should have been referred to the jury to construe: Carson v. Hosiery Co., 15 Pa. Superior Ct. 476; Dumn v. Rothermel, 112 Pa. 272; Reaney v. Culbertson, 21 Pa. 507; Sparks v. Pittsburg Co., 159 Pa. 295; Kendall v. Klapperthal Co., 202 Pa. 596; Wright v. Gas Co., 2 Pa. Superior Ct. 219.

      Calvin Rayburn, with him S. II. Me Cain, for appellee.
    It is for the court to decide what the instrument means, but the application of the meaning is a question of fact, when it is rendered doubtful by parol evidence what was the subject about which the parties contracted: Beatty v. Lycoming County Insurance Co., 52 Pa. 456 ; Erie Forge Co. v. Penna. Iron Works Co., 22 Pa. Superior Ct. 550; McCullough v. Wainright, 14 Pa. 171.
    Words in a contract which have no fixed technical meaning should be taken in their natural and obvious sense: Bole v. New Hampshire Fire Ins. Co., 159 Pa. 53; National Dredging Co. v. Mundy, 155 Pa. 233; Tiley v. Moyers, 43 Pa. 404; Ford v. Buchanan, 111 Pa. 31.
    November 4, 1904.
   Opinion by

Mr. Justice Potter,

On February 21, 1893, Patrick J. Meenan being the owner of a farm in Armstrong county, leased the premises for the production of oil and gas to E. N. Gillespie, who afterwards transferred the lease to the Enterprise Natural Gas Company. Some two years and nine months after the making of the lease, Mr. Meenan sold the farm to John Fullerton, who took possession of the place on November 22, 1895. He remained. there about three and a half years, until May, 1899, when he sold the place to the present defendant, Simon Iseman.

The lease for oil and gas purposes, made by Meenan in 1898, contained the following clause: “ It is further agreed that the party of the second part shall equip the house of the party of the first part, for the use of natural gas, and shall furnish gas free of cost, providing gas is found in paying quantities.” A gas line was run to the house, it being then owned by Mr. Meenan, and the house was equipped for burning natural gas, by the company, in accordance with the contract, apparently to the entire satisfaction of both parties. The arrangement continued throughout the period of ownership by Meenan, and that of his successor in the title, John Fullerton. The latter testifies that he never used an open light on the farm, and that the defendant company would not permit him to do so; but that he did obtain from the company special permission to use the gas under a bake oven and an outside kettle. But when the present defendant, Simon Iseman, purchased the farm, he claimed the right to have gas furnished to him for an additional light outside of the house, and between the house and spring; not connected in any way with the house, but to be used only as an open air light. He had the connections made for such a light and used it for a considerable time. To recover for the value of the gas used by the defendant in this outside light, this suit was brought. The trial judge was of the opinion that the clause in the contract defining the extent of the right to use gas, was ambiguous, and he submitted the question to the jury, for them to determine whether or not, under the contract, the defendant had the right to use gas in an outside light. We cannot agree with the learned court below that the clause in question is ambiguous. To us, its meaning does not seem doubtful or uncertain. The wording of the agreement is “ that the party of the first part shall equip the house of the party of the second part for the use of natural gas, and shall furnish gas free of cost.” Manifestly the plain meaning and intent is, that the company shall furnish gas free for that which it was to equip for its use. Not that it was'to equip one thing, the house, for the use of gas, and then furnish the gas for use in some other place not mentioned and not so equipped by it. The defendant might as well have contended that the clause would cover the uso of gas in his barn, or to light up his driveway from the road to the house. There was no such agreement. It was the house alone which was to be equipped, and evidently, under the language of the agreement, the use of natural gas free was to be supplied to that for which the equipment was to be furnished.

No other idea as to the construction of the contract seems to have been entertained by the parties who made it, or by Mr. Fullerton who succeeded Mr. Meenan in the ownership of the farm. It was not until more than six years had passed after the making of the lease, that the present defendant, who was not a party to it when it was made, sought to put a construction upon it, differing from that which had until then been accepted and acted upon by the parties to it.

“ Courts will if they can, give to the contracts of parties the exact effect which the parties themselves gave to them, and interpret them just as they interpreted them: ” Kendall v. Klapperthal Company, 202 Pa. 596 (609). Nor will they “ assume to understand the interests of contracting parties better than the parties themselves : ” Phillips v. Blatchford, 187 Mass. 510. The first specification of error alleges that the court erred in not affirming without qualification the plaintiff’s' final point, as follows: “ Under the lease offered in evidence, and under the evidence and pleadings in this case, the defendant is entitled to gas only for the dwelling house, as fitted up by the plaintiff company, after gas was found in paying quantities on the land.” We think this point should have been squarely affirmed, and this assignment of error is therefore sustained. The trial judge also left to the jury, the determination of the ‘question whether one Robert W. Shoop had been authorized by the gas company to speak for it, in granting permission to the defendant to make use of an outside light. We do not find anything in the evidence which justifies the submission of this question to the jury. It does not appear that Mr. Shoop, who was a director of the company, had any authority to change or modify the terms of the written lease. The third, fourth, and fifth assignments of error are therefore sustained, as are also the sixth and seventh.

The judgment is reversed, and a venire facias de novo is awarded.


author: Per Curiam,

text:
    Kittanning Electric Light, Heat and Power Company’s Assigned Estate.

      Corporations—Officers—Guaranty-—Insolvency—Assignment for creditors.

    Where the officers of a corporation, in order to secure from a bank an extension of a loan, give to the bank a paper to the effect that the bank “will be preferred always should anything ever happen,” the bank will not be entitled to claim a fund arising from the assignment of the corporation for the benefits of its creditors, in preference to the individual claims of the officers.
    Argued Oct. 11, 1904.
    Appeal, No. 166, Oct. T., 1904, by the Farmers’ National Bank from order of C. P. Armstrong Co., June T., 1903, No. 152, distributing- a fund in the matter of the Kittanning Electric Light, Heat & Power Company’s Assigned Estate.
    Before Mitchell, C. J., Dean, Fell, Brown, Potter and Thompson, JJ.
    Affirmed.
    Exceptions to account of assignee. Before A. O. Smith, P. J., specially presiding.
    From the record it appeared that the Kittanning Electric Light, Heat & Power Company owed the Farmers’ National Bank of Kittanning $5,000 on a note. To secure a renewal of this note J. R. Einstein, a director of the company, at the instance of J. B. Neale, president of the company, wrote on a blank deposit slip the following note to the bank’s cashier. “Mr. Doverspike, Dear Sir: We have borrowed no money
    from any outsider since your loan was negotiated, any indebtedness incurred since are open book acc. or loans made to the Co. by their stockholders. The banks will be preferred always should anything ever happen. ' (Signed) J. R. Einstein.”
    The Electric Light Company was indebted both to Einstein and Neale. The bank claimed a preference over the individual claims of Einstein and Neale. The court disallowed the preference.

      Error assigned was the order of distribution.

      Eloy Q. Jones, for appellant.

      II. L. Golden, for appellee.
    November 4, 1904:
   Per Curiam,

The learned judge below practically disposed of this case in his seventh conclusion of law, to wit: “ That the contention in this case that the claims of J. R. Einstein and James B. Neale estate against the fund for distribution should be postponed in payment until the claim of the Farmers’ National Bank is fully paid is not tenable, for the reason that the equities claimed or existing by reason of the statement made by J. R. Einstein, either on his behalf alone or on behalf of himself and J. B. Neale, amounts to a guaranty of payment on the part of said J. R. Einstein and J. B. Neale, cannot be worked out through the medium of a distribution of an assigned estate of a third party. Whether the statement made by J. R. Einstein on the deposit slip amounts to a personal guaranty or not, is not necessary for us to decide in this case. To introduce the personal liability of J. R. Einstein and J B. Neale estate, as guarantors or sureties by reason of the paper in question, to the B’armers’ National Bank, into the question of distribution of an assigned estate does not in our view seem to be authorized by any principle of law.”

The other and subordinate questions do not require discussion, and the judgment is affirmed on that part of the opinion.


author: Pee Ctteiam,

text:
    Schrecongost, Appellant, v. West.

      Deed—Estate tail—Fee simple estate—Rule in Shelley’s Case.

    Where the premises of a deed describe the grantee as a married woman, and “ heirs ” by her then husband, and the grant is to the “said parties of the second part their heirs and assigns,” the deed conveys an estate in special tail, which under the Act of April 27, 1855, T. L. 368, is converted into an estate in fee simple.
    Argued Oct. 11, 1904.
    Appeal, No. 167, Oct. T., 1904, by plaintiffs, from judgment of C. P. Armstrong Co., March T., 1904, No. 124, on verdict for defendant in case of Sarah Schrecongost et al. v. Daniel West.
    Before Mitchell, C. J., Dean, Fell, Brown, Potter and Thompson, JJ.
    Affirmed.

      Ejectment for land in Wayne Township. Before Patton, P. J.
    The court below stated the facts to be as follows :
    This is an action of ejectment brought by Sarah Schrecongost, A. H. West, Jane Anthony and Margaret McCullough against Daniel West, to recover a certain tract of land containing fifty acres more or less. Since the bringing of the suit, A. H. West, one of the plaintiffs, has filed his disclaimer. It is admitted that Patrick Denny is the common source of title.
    On October 16, 1858, a deed was made between said Patrick Denny and Mary his wife of the first part and Elizabeth West and her heirs by Samuel West, of the second part, wherein the said parties of the first part, in consideration of the sum of $850, conveyed unto the said parties of the second part their heirs and assigns, the property in dispute. All the parties to the controversy are the children of Elizabeth and Samuel West. Sarah was bom in 1849, Andrew H. in 1856, and the rest after the conveyance.
    The plaintiffs, as children of Elizabeth and Samuel West, claim as purchasers under the above deed. The defendant claims under a deed from Elizabeth and Samuel West, dated October 14, 1899, for the land in dispute. Elizabeth West and Samuel West are both dead and were at the time of the bringing of this action. The plaintiffs and the defendant are all their children and are all still living.
    The court directed a verdict for defendant.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in directing verdict for defendant.

      Ii. A. McCullough, with him II. A. Heilman and F. C. Jones, for appellants,
    cited: Bedford’s App., 126 Pa. 117; Huss v. Stephens, 51 Pa. 282; Criswell v. Grumbling, 107 Pa. 408; Morris v. Stephens, 46 Pa. 200; Haskins v. Tate, 25 Pa. 249.

      M. F. Leason, with him C. E. Harrington, for appellee,
    cited: Reinhart v. Lantz, 37 Pa. 488; Knoderer v. Merriman, 7 Atl. Repr. 152; Warn v. Brown, 102 Pa. 347; Cockins’s App., 111 Pa. 26; Tyler v. Moore, 42 Pa. 374; Karchner v. Hoy, 151 Pa. 383; Brinton v. Martin, 197 Pa. 615; Potts’s App., 30 Pa. 170 ; Haldeman v. Haldeman, 40 Pa. 35 ; Grimes v. Shirk, 169 Pa. 74; Pifer v. Locke, 205 Pa. 616; Seybert v. Hibbert, 5 Pa. Superior Ct. 537.
    November 4, 1904 :
   Pee Ctteiam,

The learned judge below directed a verdict for defendant, stating the grounds as follows: “We do not think that the contention of the defendant, that the words of the conveyance fall within the rule in Shelley’s case, can be sustained. There is no separate freehold estate for life or years in the first taker: Simpson v. Reed, 205 Pa. 53.

“ There is nothing in the deed to indicate that the remainder-men should take as heirs of the first taker: Guthrie’s Appeal, 37 Pa. 9. Had this deed been to Elizabeth West for the term of her natural life or for years, and at her death to her heirs begotten upon her by Samuel West, the case would have clearly fallen within the rule in Shelley’s case, but as shown by the above authorities it does not so fall.

“ As we view this deed, it conveyed an estate in special tail. It is stated in Blackstone, book 2, page 114, that ‘ where lands and tenements are given to a man and the heirs of his body on Mary his now wife to be begotten, here no issue can inherit but such special issue as is engendered between them two, and therefore it is called special tail.’

“ Then comes our Act of Assembly of April 27, 1855, P. L. 368, which provides: ‘ Wherever hereafter any gift, conveyance or demise of an estate in fee tail would be created according to the existing laws of this state, it shall be taken and considered to be an estate in fee simple and as such shall be inheritable and freely alienable.’ This act makes the estate a fee simple in Elizabeth West, the first taker, and in our opinion her deed of October 14, 1899, to Daniel West, gave the better title and the verdict of the jury should be for the defendant.”

The judgment is affirmed on this charge.


author: Pee Cubiam,

text:
    Harrington, Appellant, v. Stivanson.

      Estoppel—Sale of real estate—Attorney at law.

    Ignorant and disabled persons are not estopped from claiming title to land because their attorney accepted the proceeds of the sale of the land at an orphans’ court sale, where it appears that the attorney acted in apparent ignorance of his client’s rights, that the parties never authorized him to accept the money, were without knowledge that he did so, never received the money, and that the attorney himself offered to refund it.
    Argued Oct. 11, 1904.
    Appeal, No. 182, Oct. T., 1904, by plaintiff, from judgment of C. P. Armstrong Co., Sept. T., 1904, No. 142, on verdict for defendant in case of Charles E. Harrington v. Hettie Stivanson et al.
    Before Mitchell, C. J., Dean, Fell, Brown, Potter and Thompson, JJ.
    Affirmed.
    Ejectment for land in Kittanning borough.
    At the trial the jury returned a verdict in favor of the defendant on which judgment was entered.
    On a motion for a new trial Patton, P. J., filed the following opinion:
    May 9, 1904, Nancy A. Stivanson, prior to 1872, was the owner of out lot No. 7, Kittanning borough, and she is the common source of title. The plaintiff claims title by a sale of her interest in the real estate by her executors, and it is admitted that his paper title is good. The defendants claim under the statute of limitation. They showed that George Washington Stivanson went into possession of the property in the spring of 1872, fenced off the back part of the lot, thirty-seven feet six inches by seventy-eight feet six inches, and built thereon a house and stable costing about $1,500. Said G. W. Stivanson lived on the land until October 8, 1888, when he died, leaving to survive him his widow, Hettie Stivanson, and three children, who are the present defendants. They continued to live upon the premises until August 5, 1902, the time of bringing this suit. It was a disputed question of fact whether the possession of the defendants and their predecessor in title ivas adverse or not. We think there Avas sufficient evidence in the case to submit to the jury on that question. We (lid submit it and the jury found for the defendants, so that question is eliminated.
    The main contention of the plaintiff is that the defendants have estopped themselves from claiming the land in dispute; first, because Henrietta Stivanson, one of the defendants, gave notice at the sale that she claimed the entire property, which is inconsistent with her present claim ; and second, that the other defendants accepted the amount awarded to them upon the distribution of the proceeds of the sale of the real estate, and cannot now claim the real estate itself. We submitted these questions to the jury instructing them that if they believed that this notice was given or the money received knowingly and wilfully the verdict of the jury must be for the plaintiff, but if it was done ignorantly, or if it was done by their attorney without their knowledge or consent, then defendants were not estopped. Was this error?
    The testimony shows that the defendant, Hettie Stivanson, was poor and ignorant and made her living by washing ; one of the other defendants was blind and another paralyzed. They never claimed more than thirty-seven and one-half feet off the back end of the lot. For thirty years they were consistent in their claim, except in the typewritten notice that was handed to the executors. We are without information as to who wrote it or why such an egregious blunder was made. It appears to have been drawn by someone who had no knowledge of what the facts of the case were.
    Equally careless were the facts that on September 7, 1903, J. H. Fainter, attorney, receipted for $85.58, the amount awarded by the auditor to the defendants out of the proceeds of the sale of the real estate. This money was paid after the jury was sworn and while the case was on trial. When the defendants’ attorney found that he had been caught in a trap, before the testimony was closed, he offered to refund the money to the executors, and offered to pay it into court. That the plaintiff could secure any advantage over the defendants by such a course of conduct is repugnant to our sense of justice and right. However there is no evidence that the attorney collected this money with the knowledge and consent of the defendants. “The admissions of an attorney cannot be given in evidence against his client unless they are made by her express or implied authority. It would be an intolerable rule if it were to be held that the rights of clients could be divested by loose expressions of their attorneys: ” McGarry v. McGarry, 9 Pa. Superior Ct. 71. “ A statement made by an attorney in the absence of his client is inadmissible in evidence.”
    In order to work an estoppel the plaintiff was bound to show not only that the defendants received the money, but that they did it knowingly : Smith v. Eyre, 161 Pa. 115. Thus in the case of Spencer v. Jennings, 139 Pa. 198, the administrators received the money arising from the sale of the real estate and invested part of it for the use of the heirs. But it was then held that the right to claim an estoppel against them fell, because it was not shown that they had knowingly received the purchase money.
    As to the notice given by Mrs. Stivanson it is quite apparent that it was a mistake. It misled no one, or injured no one. The executors, who were the children of Nancy Stivanson, knew full well that she did not then or never had claimed all -the property. If no one is misled the doctrine of estoppel does not apply.
    It is doubtful whether the receipt of money by a legatee, claiming to be entitled to receive it, and much more as an heir at law, can be treated as an election to affirm the will: Sen-singer v. Boyer, 153 Pa. 628.
    Estoppel is governed by equitable principles and to allow it to be asserted under the facts in this case would be most inequitable and unjust: Miller’s Estate, 159 Pa. 562.
    And now, May 9, 1904, the motion for a new trial is refused and judgment directed to be entered on the verdict upon payment of the jury fee.

      .Errors assigned were various instructions and rulings on evidence.

      M. F. Leason and H. A. Heilman, with them JR. A. McCullough, for appellant.
    If one receives the purchase money of land sold, he affirms the sale and he cannot claim against it, if void or onty voidable: Adlum v. Yard, 1 Rawle, 163; Wilson v. Bigger, 7 W. & S. 111; Crowell v. Meconkey, 5 Pa. 168; Stroble v. Smith, 8 Watts, 280 ; Smith v. Warden, 19 Pa. 424; Com. v. Shuman, 18 Pa. 343; Jacoby v. McMahon, 174 Pa. 133; Maple v. Kussart, 53 Pa. 348; Fink v. Miller, 19 Pa. Super. Ct. 556 ; Stouch v. Zeigler, 196 Pa. 489.

      John H. Painter, with him Ross Reynolds, for appellee,
    cited: Miller’s Estate, 159 Pa. 562 ; Sensinger v. Boyer, 153 Pa. 628.
    November 4, 1904 :
   Pee Cubiam,

This judgment is affirmed on the opinion of the court below refusing a new trial.


text:
    Weaver v. Griffith, Appellant.

      Contract—Sale—Forfeiture—Waiver.

    While a contract may provide that it shall be terminable at the will of either party, so that a purchaser may even terminate it by his own default, yet such effect will not be given to it unless the intent of both parties to that effect be made apparent by clear, precise and unequivocal language.
    Where a contract provides “ in case the said party of the second part doth not make payment as above specified at the time herein stated then this agreement is to be null and void and all parties are to be released from all liabilities herein and all money previously paid forfeited,” a failure to make the payments at the stipulated time does not of its own force, terminate the contract. The seller must declare the forfeiture, and if he fails lo do so and retains the right to enforce the contract against the purchaser to buy, he equally keeps alive his own obligation to sell.
    Argued Oct. 18, 1904.
    Appeal, No. 100, Oct. T., 1904, by defendant, from decree of C. P. Indiana Co., June T., 1901, No. 1, on bill in equity in case of J. II. Weaver v. Charles Griffith.
    Before Mitchell, C. J., Dean, Fell, Bbown, Mestbezat, Potteb and Thompson, JJ.
    Affirmed.
    Bill in equity by purchaser for specific performance of a contract to sell land. Before White, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was decree of specific performance.

      J. JJ. Banks, for appellant,
    cited: Diehl v. Adams County Mut. Ins. Co., 58 Pa. 443 ; Vito v. Birkel, 209 Pa. 206 ; Beatty v. Lycoming County Mut. Ins. Co., 66 Pa. 9; Bodine v. Glading, 21 Pa. 50.

      Clarence B. Sprout, with him S. M. Jaclc and D. B. Taylor, for appellee, were not heard.
    November 4, 1904 :
   Per Curiam,

The defendant might have terminated the contract under the clause that “ In case the said party of the second part doth not make payment as above specified at the time herein stated then this agreement is to be null and void, and all parties are to be released from all liabilities herein and all money previously paid forfeited.” But the failure to make the payments at the stipulated times did not, of its own force, terminate the contract. It was not one of option, but of sale and purchase, and prima facie the time of payment was not of its essence. While a contract may provide that it shall be terminable at the will of either party, so that a purchaser may even terminate it by his own default, yet such effect will not be given to it unless the intent of both parties to that effect be made apparent by clear, precise and unequivocal language. The presumption is that the forfeiture clause is for the benefit of the vendor and enforceable at his election. Without such election and action the purchaser would not be released from his obligation to pay, and equally the vendor would continue to be bound by his agreement to sell.

In the present case the court below found as a fact that the defendant had not elected to enforce his right of forfeiture, but by his conduct had substantially waived it. Thus retaining his right to enforce the contract against the purchaser to buy he equally kept alive his own obligation to sell.

Decree affirmed.


author: Mb. Justice Potter,

text:
    Cracraft v. Bessemer Limestone Company, Appellant.

      Negligence—Master and servant—Risk of employment—Obvious danger— Contributory negligence—Buzz saw.

    While it is the duty of an employer to give information to an employee, as to the particular perils and dangers of the service in which he is engaged, this duty does not require warning against such dangers as are the subject of common knowledge, or are open and apparent to ordinary observation.
    The owner of a sawmill is under no duty to instruct a workman over twenty years of age who has worked for more than four months in the mill, as to the danger of letting his hand come in contact with a circular saw, where the operation of the saw is open and visible, and the danger obvious. •
    Argued Oct. 18, 1904.
    Appeal, No. 123, Oct. T., 1904, by-defendant, from judgment of C. P. Lawrence Co., March T., 1903, No. 43, on verdict for plaintiff in case of Louis Cracraft v. Bessemer Limestone Company.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, J J.
    Reversed.
    Trespass to recover damages for personal injuries. Before Wallace, P. J.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    The court refused binding instructions for defendant.
    Verdict and judgment for plaintiff for $1,800. Defendant appealed.

      Error assigned, among others, was in refusing binding instructions for defendant.

      Robert K. Aiken, for appellant.
    The employer is not responsible for injuries to adults; nor for injuries to young persons who have had that experience from which knowledge of danger may reasonably be presumed, and that discretion which prompts to care: Rummel v. Dilworth, 131 Pa. 509; Tagg v. McGeorge, 155 Pa. 368; Melchert v. Brewing Co. 140 Pa. 448 ; Fletcher v. Traction Co., 190 Pa. 117; Ship-Building Co. v. Nuttall, 119 Pa. 149; Ash v. Verlenden, 154 Pa. 246; Allison Mfg. Co. v. McCormick, 118 Pa. 519 ; Sheetram v. Trexler Stave & Lumber Co., 13 Pa. Superior Ct. 219 ; Ford v. Anderson, 139 Pa. 261; Masterson v. Eldridge, 208 Pa. 242; Nuss v. Rafsnyder, 178 Pa. 397; McIntyre v. Steel Foundry Co., 208 Pa. 34; Fick v. Jackson, 3 Pa. Superior Ct. 378 ; Reese v. Clark, 146 Pa. 465; Lehigh, etc., Coal Co. v. Hayes, 128 Pa. 294; Higgins v. Fanning, 195 Pa. 599.
    The plaintiff was guilty of contributory negligence : Kehler v. Schwenk, 144 Pa. 348; Greenway v. Conroy, 160 Pa. 185 ; Ford v. Anderson, 139 Pa. 261; Zum v. Tetlow, 134 Pa. 213.

      A. W. Gardner, with him B. A. Winternitz, for appellee.
    The evidence in this case as to the negligence of the defendant and the alleged contributory negligence of the plaintiff is conflicting, and could not be determined by the court as a matter of law, and these questions were necessarily for the exclusive determination of the jury: Reese v. Clark, 198 Pa. 312 ; Williams v. Clark, 204 Pa. 416; Patterson v. R. R. Co., 76 Pa. 389.
    Where the master voluntarily subjects his servant to dangers such as in good faith he ought to provide against, he is liable for any accident arising therefrom: Reese v. Clark, 198 Pa. 312; Kehler v. Schwenk, 151 Pa. 505; Patterson v. Pittsburg, etc., R. R. Co., 76 Pa. 389; Garrity v. Penna. Casting, etc., Co., 17 Pa. Superior Ct. 623 ; Giles v. Jones & Laughlins, 204 Pa. 444.
    Before putting an inexperienced employee in charge of dangerous machinery, with the use of which he is unacquainted, it is the positive duty of the employer to instruct and properly qualify him for such new service: Lebbering v. Struthers, 157 Pa. 312; Neilson v. Hillside Coal & Iron Co., 168 Pa. 256 ; Smith v. Coal & Iron Co., 186 Pa. 28; Stapleton v. Traction Co., 5 Pa. Superior Ct. 253.
    Where the servant shows that the injury he received was in consequence of an increased risk,—une not ordinai'ily incident to the employment—growing out of the master’s negligence,— the burden of the proof is upon the master to show that the servant knew of and understood the increased danger: Nadau v. White River Lumber Co., 76 Wis. 120 (43 N. W. Repr. 1135); Rummel v. Dillworth, 111 Pa. 343; Rummel v. Dilworth, 131 Pa. 509.

      November 4, 1904:
   Opinion by

Mb. Justice Potter,

Generally speaking, the duty of an employer to give information to an employee, as to the particular perils and dangers of the service in which he is engaged, is unquestioned. But this duty does not require warning against such dangers as are the subject of common knowledge, or are open and apparent to ordinary observation. In the present case, the plaintiff, more than twenty years of age, had been employed ii> the sawmill of the defendant for more than four months pre> vious to the accident. The saw in use, was a large circular saw, the lower part of which revolved in a pit in the ground. In the bottom of the pit, and beneath the saw, was a sawdust carrier that conveyed the sawdust from under the saw to the outside of the building. The sawdust as it came from the saw, was confined by, and fell through, an open bottomed box, shaped like a hopper, smaller at the bottom than at the top. This box surrounded and closed in the saw. At times the box would choke up with sawdust and bark, and it was necessary to open a door in the side of the box and punch out the obstructions. The lower edge of the saw was about five inches above the top line of the door, so that one who was reaching in the door would be below the edge of the saw and would not touch it unless by reaching upward. It was customary to use a wooden stick about twenty inches long to punch out the bark and sawdust. It was only necessary to do this at intervals. The plaintiff was engaged in cleaning out this box, and while so doing allowed his hand to come in contact with the saw, and received the injury for which he here seeks to recover damages. He based his right to recover upon the ground that he had not been sufficiently warned by his employer of the danger of cleaning out the box. If there is any piece of machinery which is obviously dangerous, and which carries its own warning to keep away from it, it is a circular saw. To the ordinary mind it stands as a symbol of danger. Nothing is more proverbially dangerous to those who come in contact with it. Surely the plaintiff, who was of an age and a degree of physical and mental capacity to warrant the presumption that he could perform the simple duties required of him, did not need to be warned against touching the saw with his hand. That he appreciated the danger is shown by the fact that he used the stick with which to clear out the obstructions in the box. As the trial judge said to the jury, the defendant was not bound to tell the plaintiff that if he put his hand against a buzz saw it would cut it off. Nor was it required to point out to him the numberless ways in which it would be possible for him to come in contact with the saw and receive injury.

The plaintiff does not say that he did not know the danger, but he says that he used the stick to punch out the bark, and that the stick caught in the saw and drew his hand against the saw.

The accident was therefore the direct result of the careless manner in which the plaintiff handled the stick. What possible instructions could have been given to plaintiff except to warn him not to allow his hand to come in contact with the saw ? He knew it was there, for it was right before his eyes; only the bottom part of the saw revolved in the box. He knew that the act of punching the bark and sawdust out of the box involved approaching the edge of the saw, for he took the stick in his hand.in order that he might keep his hand at a safe distance from the saw. The most ordinary degree of care and prudence would have enabled the plaintiff to discover the danger which would result from his hand touching the saw, and he was therefore bound to apprehend it, and avoid it, by keeping his hand at a safe'distance. He was not a child and was apparently of sufficient physical and mental ability to perform the duties of his position. As this court said in Fletcher v. Phila. Traction Co., 190 Pa. 117, “The knowledge of the danger, necessarily acquired from the servant’s abundant opportunities for observation, constituted the experience; the means of avoiding it were as plain to one man as another, for they were only such as ordinary intelligence would suggest.” We can see nothing in the evidence which justified the submission of this case to the jury.

We think the court below erred in not directing a verdict for the defendant; therefore the judgment is reversed and is here entered for the defendant.


text:
    Hartman, Appellant, v. Citizens Natural Gas Company.

      Negligence—Natural gas companies — Explosion—Notice of defect—Evidence—Province of court and fury.

    In an action against a natural gas company to recover damages for injuries to a house and personal property resulting from an explosion of natural gas, there was evidence that the odor of escaping gas had been detected in the vicinity of the house for two years consecutively. There was also evidence that after the explosion the service pipe leading from the main to the house was excavated and a leak found therein; that the service pipe when dug up was rusted through in places, that in the construction of a sower this pipe had been lowered and thereby subjected toa strain likely to cause a break ; and that several years before the accident when the street was excavated on the opposite side, the earth was discolored and smelt of gas. Held, (1) that the evidence as to the odor of gas was admissible; and (2) that the case was for the jury, and that a verdict and judgment for the plaintiff should be sustained.

      Negligence—Natural gas companies—Degree of care—Damages.

    Natural gas companies are held to a degree of care which is commensurate with the dangerous character of the agency which is handled. The measure of care is not that of an insurer to every one who sustains loss by reason of gas escaping and exploding, but it is liable for an explosion where it knew, or by the exercise of ordinary care should have known, of the defect in its pipes or mains.
    Argued Oct. 19, 1904.
    Appeal, No. 178, Oct. T., 1904, by defendant, from judgment of C. P. Beaver Co., Sept. T., 1902, No. 12, on verdict for plaintiff in case of Margaretta Hartman v. Citizens Natural Gas Company.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Trespass to recover damages for injuries to a house and personal property. Before Wilson, P. J.
    The opinion of the Supreme Court states the case.
    Verdict for plaintiff for $2,983.52, upon which judgment was entered for $2,541.50, all above that amount having been remitted.

      Errors assigned were various portions of the charge.

      Harry Oalhoon, with him E. S. Weyand, for appellant,
    cited; Titus v. R. R. Co., 136 Pa. 618 ; Hayes v. Penna. R. R. Co., 195 Pa. 184.

      Frank F. Reader, with him R. >$. Holt, for appellee,
    cited: Koelsch v. Philadelphia, 152 Pa. 355; Heh v. Consolidated Gas Co., 201 Pa. 443; Prichard et al. v. Gas Co., 2 Pa. Superior Ct. 179; Henderson v. Allegheny Heating Co., 179 Pa. 513.
    November 4, 1904:
   Per Curiam,

The result of the evidence is thus fairly stated by the learned judge below in his opinion on the motion for a new trial. “ This case was not without some difficulties, and the defendant strenuously objected to evidence showing that the odor of gas had been detected in the vicinity of plaintiff’s house prior to the accident. There was evidence introduced to show that the odor of escaping gas had been detected in this vicinity for two years consecutively prior to the accident. It was shown upon the trial that after the explosion the service pipe leading from the defendant’s main to the house of the plaintiff was excavated and a leak found therein, that the ground at the time of the accident was frozen with a considerable crust; the pipe itself was taken out of the ditch, was introduced in evidence and shown to be the pipe which was part of the old service pipe above referred to. The evidence further showed that the house was blown up as a result of a natural gas explosion ; and it was left to the jury to determine whether or not the defendant company had notice or ought to have had notice of the existence of the leak in its pipe. That the proximate cause of the explosion was escaping gas from the defendant company’s line cannot be questioned; but this fact, together with the fact as to whether the defendant company had notice or should have had notice that its gas was escaping was left to the jury to find; so that considering all the evidence in the light in which that evidence was submitted to the jury by the court there certainly is no error.”

There was other evidence on behalf of the plaintiff that when the street was excavated on the opposite side in 1897 the earth was discolored and smelt of gas; that the service pipe when dug up was rusted through in places; and that in the construction of a sewer the pipe had been lowered and thereby subjected to a strain likely to cause a leak. These and other items tending to show that a leak had in fact existed for a long time and should have been discovered, necessarily took the case to the jury, and were fairly stated in the charge together with the evidence and arguments of the defendant as to their inconclusiveness to establish negligence.

The evidence as to the odor of gas was clearly admissible. It tended to prove negligence more or less strongly according to the strength of the odor and the length of time it was perceptible. How far it was the ordinary and unavoidable result of gas pipes in the course of years, and how far it was excessive and exceptional and therefore calling for investigation was for the jury to determine.

The complaint that the charge was inadequate in not furnishing the jury with any standard by which to measure the duty of defendant cannot be sustained. The court gave the jury very fully the usual definition of negligence as the absence of care, caution and diligence according to the circumstances, and the burden of proof on the plaintiff. And with special reference to the duty of appellant, he said “ The rule, as we have said, is that natural gas companies are held to a degree of care which is commensurate with the dangerous character of the agency which is handled. The measure of care is not that of an insurer to every one who sustains loss by reason of gas escaping and exploding, but it is liable for an explosion where it knew or by the exercise of ordinary care should have known of the delect in its pipes or mains. That, gentlemen, briefly defines the position of the law, or the rules to which the defendant must be held, not to be an insurer against every accident, because there are many contingencies which might arise where a defendant by the exercise of the best care that human effort could give under certain circumstances could not possibly avoid accident, and the law does not require the highest possible degree of care, but that ordinary care and prudence demanded by the character of the agency handled.”

This was a fair statement of defendant’s measure of duty which the jury were to apply: Koelsch v. Philadelphia Co., 152 Pa. 355 ; Heh v. Gas Co., 201 Pa. 443.

Judgment affirmed.


author: Pee Ctjbiam,

text:
    Allison’s Estate.

      Wills—Probate—Issue devisavit vel non—Testamentary capacity—Undue influence—Refusal of issue.

    A jury should not be permitted to guess that there was testamentary incapacity at the time a will was executed, or that the will was the result of undue influence because they might think that a former will made a better disposition of the testator’s property than the will contested, and that influence had been brought to bear on him to make the change. Testamentary incapacity or undue influence must be proven before a will can be legally set aside.
    An "issue devisavit vel non will not be granted on the question of the lack of testamentary capacity or undue influence, where it appears that although the will was written by the deceased’s brother, whose wife witnessed it, and whose children were the principal beneficiaries, and although the deceased was at the time blind and ill, there was no reliable evidence that the deceased did not know the natural objects of his bounty, the property he owned, and what disposition he wanted to make of it, or that the brother exercised undue influence over him when he made the will, so that the court could say that the deceased was coerced into making it.
    Argued Oct. 20, 1904.
    Appeal, No. 14, Oct. T., 1904, by H. H. Bebout et al., from decree of O. C. Washington Co., Feb. T., 1903, No. 3. refusing air issue devisavit vel non in Estate of Thomas Allison, deceased.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestreuat, Potter and Thompson, JJ.
    Affirmed.
    Petition for an issue devisavit vel non.
    McIlvaine, P. J., filed the following opinion :
    Thomas Allison died in the very early morning of Tuesday, August 19, 1902. On Saturday, August 16, 1902, about four o’clock in the afternoon, he made his last will and testament. Jonathan Allison was the scrivener of that will, and he and his wife Margaret Allison witnessed its execution. On August 22, 1902, the will was probated without objection from any source. Albert J. Allison and Thomas Gr. Allison, the executors, settled their account and immediately made distribution. On February 10, 1903, the Board of Trustees of the Chartiers Presbyterian Church, which wa,s a beneficiary under a former will made by Thomas Allison, presented its petition in this court stating that Iris will of date August 16, 1902, was made when lie did not have testamentary capacity, that it was made by reason of Jonathan Allison having exercised undue influence over him to have him make it, and that he did not sign the paper at the end thereof, and praying that an issue be certified by this court into the court of common pleas to be tried by a jury to determine whether these allegations were true or not. After notice to the executors and legatees named in the will, testimony taken before a commissioner was submitted to the court and argued by counsel; and the question now for decision is: Should the prayer of the petition be granted and an issue awarded to be tried by a jury in the court of common pleas ? The first inquiry is: Wliat rule shall guide us in determining this question ? It is this: Suppose the issue asked for had been granted, with the executors as plaintiffs, and suppose the case were before a jury on trial, testimony closed (being the testimony now before us) and suppose the executors, the plaintiffs, had just presented this p,oint to the court: Under the evidence in this case the verdict of the jury must be in favor of the plaintiffs, would the court feel constrained to affirm the point and thus give binding instructions to find for the plaintiffs and in favor of the will ? Or, to state the rule another way: Suppose the jury had found against the will and in favor of the defendants without such a point having been presented, and the executors, the plaintiffs, had made a motion for a new trial, assigning as a reason in support of the motion that the verdict was not supported by the evidence, would the court feel constrained to set the verdict aside and grant a new trial ? This brings us to a consideration of the evidence.
    Thomas Allison, the testator, was between seventy-seven and seventy-eight years old when he died. He died of Bright’s disease, with which he had been afflicted for some time. In the fore part of July, five or six weeks before his death, his illness was of an acute nature and he took his bed. From that time until his death he needed constant attention. He was blind and had been so for two years or more. The acute attack that put him to bed in the first part of July was of such a character as to make him drowsy and when not in pain he slept a great deal. The cause of this was probably the uremic poison in the blood produced by the condition of his kidneys. He was weak and at times did not have control of his bowels. When the medicine administered had its effect on his kidneys and the poisonous matters were thrown off and thus prevented from being taken up in the blood, he would be brighter. He sometimes would imagine that he was not at home and would tell the nurse he must go and would try to get out of bed. He sometimes would involuntarily befoul the bed and more than once put his hand in the excrement. He became unconscious on the evening of Monday, August 18,1902, and from that until one o’clock A. ivr. Tuesday, the 19th, the hour of his death, was in a dying condition.
    Thomas Allison was unmarried and his heirs at law were Jonathan Allison, a brother, Joseph Allison, a brother, David Allison, a brother, and Mary Allison, a sister. Jonathan Allison is married, has six children living and lives in East Washington, in this county. Joseph Allison, David Allison and Mary Allison are all single and never have been married. They live on a farm in Chartiers township, in this county. Up until about four years ago Thomas Allison, the deceased, lived with them, when his eyesight became bad and he came to the home of his brother Jonathan where he resided and was cared for until the time of his death. About two years ago, as we have already indicated, he became totally blind. While he resided in Chartiers township he attended the Chartiers Presbyterian Church but was not a member. After he came to East Washington he did not attend this church and his intercourse with its members, by reason of the distance, ceased.
    In 1889 he made a will in which he bequeathed to the Char-tiers Presbyterian Church one hundred shares of the stock of the Exchange Bank of Pittsburg, Pa. In 1894 he made another will, revoking the will of 1889, but in which he made the same bequest to the Chartiers Presbyterian Church. The last will was written by R. V. Johnson, and he and Albert G.Allison were named as executors. The will was left in the custody of Mr. Johnson and he had it at the time of Thomas Allison’s death.
    According to the testimony of the witnesses to the will of date August 16, 1902, it was made under the following circumstances : Just after lunch at the noon hour of that day Thomas Allison and Mrs. Margaret Allison were in his, Thomas Allison’s, room when he asked if Jonathan had gone to town. (Jonathan’s office was in Washington a half a mile or more distant from his residence.) She told him he had. She then asked him if he wanted his brother. He replied that he did; that he would like to have him here—that he wanted to change his affairs. Tie had once or twice before this spoken in Mrs. Allison’s presence of wanting to change his will and she supposed this was what he meant. Jonathan returned to his home between three and four o’clock of that afternoon and on his return Mrs. Allison told him that “ Tommy ” wanted to see him and had requested him to come to his room as soon as he came home. He went from the library to “ Tommy’s ” room, taking some writing paper with him. When he reached the room “ Tommy ” told him that he wanted to make another will. Jonathan called to his wife and asked her to get him pen and ink. She brought him the pen and ink and a book to write on. He then said to “ Tommy,” “ Now, how do you want this, how do you want this property of yours left, ‘ Tommy ’ ? ” “ Tommy ” replied, “ I want Mary and Joseph each to get a thousand dollars.” Jonathan then said, “ Won’t you leave David a thousand?” He replied, “No, I w'on’t leave David anything.” Then Jonathan said, “ What disposition do you want to make of the balance ? ” He replied, “ I want it divided among your children equally, share and share alike.” After he finished writing, Jonathan said, “Now, ‘ Tommy,’ I will read you this just as I have written it.” He read it over to him. He said after a moment’s pause, “ Read that again, Jonathan.” It was read a second time, when Jonathan said, “Is that the way you want it?” He replied, “ That’s just the way I want it.” Jonathan said, “Well, are you ready to sign it? There is nobody here but mother and I to witness it, but I presume that will do; if you want to sign it, you can make your mark.” He sat up in the bed and touched the pen while Jonathan held the pen and made the mark. Jonathan and Margaret at his request signed as witnesses, and “Tommy ” then said, “ I am satisfied; now I have got things fixed the way I want them.” When this will was written he had in mind his former will, as he suggested to Jonathan that he ought to have the will that was in the possession of R. Y. Johnson. Jonathan told him it was not necessary, as he could put in this will that all other former wills were revoked. When Jonathan and Mrs. Allison went upstairs on this occasion, James Walters, a colored boy of seventeen or eighteen years, was in Thomas Allison’s room. Before the will was. written Mrs. Allison asked him to retire. After he left the room he thought he heard some one say “ and the rest to our children.”
    Jonathan Allison and his brother, after the latter came to the former’s home, on more than one occasion had talked of the wills that had been previously made, and Jonathan had expressed the decided opinion that the large bequest to the church was unnatural and wanted him to make another will. At the times these conversations were had Thomas Allison mentally was in his normal condition and was a man of strong will and did his own thinking. In easy reach of Jonathan Allison’s are many residences, and it would have taken but a few minutes to have obtained two wholly disinterested persons to have witnessed the will. Jonathan Allison and Margaret Allison, who witnessed the will, in their testimony gave the' details of the execution of the will as we have stated them, and gave it as their opinion that “ Tommy ” was perfectly rational and had an intelligent idea of the business he was transacting. Four of the children of Jonathan Allison and a student at W. & J. College, named Sherrard, who is a relative of the family, and all of whom were in “ Tommy’s ” room on Saturday, August 16, testified that he was rational when they visited him and competent to make a will. The attending physician says that he was rational on Monday morning, August 18; that on his daily visits to him he found him rational when he talked to him. John Walters, a colored man who was employed to nurse the deceased and who was with him continuously for five or six weeks immediately before his death, testified in a rather noncommittal way, “ That he didn’t know, but he supposed he was not competent to make a will.” No other Avitness expressed an opinion that the deceased did not have testamentary capacity up until Monday morning, August 18.
    The foregoing we believe to be a fair statement of the facts relative to the execution of the will and the mental condition of the deceased as they appear in the testimony. Some witnesses, however, were called to discredit Jonathan Allison. R. Y. Johnson, the person named in the former will as one of the executors, testified that two or three weeks before the death of Thomas Allison, Jonathan told him that “Tommy’s ” mind was giving away; that at one other time Jonathan said “ Tommy ” had not been in his right mind and fit to make a will for thirty years. At another time shortly before “Tommy’s ” death, Jonathan said “ His mind is much better.” At another time he spoke of the deceased dirtying the linen and that lie put his hand in the discharge from his bowels. That Jonathan told him the next morning after “ Tommy’s ” death that he had made another will, and on being asked when, said two weeks ago. That he also said at that time that it was unfortunate that he and Mag (meaning his wife) were the only witnesses.
    Mr. Allison’s version of his conversation with R. V. Johnson was that he told him that “ Tommy ” was bad with his disease; that he suffered, and sometimes would not “ be at himself ” properly. He denied that he told him that “ Tommy ” had been out of his mind and not fit to make a will for thirty years. He says that knowing that “ Tommy ” made his first will when he was mad or in a pet, he did say to Johnson that he was not fit to make a will, that no man had any business making a will when he was mad. He says he told Johnson that “ Tommy ” made a will two or three days ago, not weeks.
    With the case before us as we have found the testimony in brief to be, would the court be constrained on a trial before a jury on such testimony to give binding instructions to find in favor of the proponents of the will or grant a new trial if a jury had found against the will ?
    We may concede as argued by counsel that the actions of Jonathan Allison in the premises were not what those of many another man would have been under like circumstances, that he threw himself open to criticism and suspicion when he wrote his brother’s will, wherein nearly his whole estate is given to his own children, and witnessed it, together with his wife. We also may concede that he thought his brother ought not to give $10,000 to the Chartiers Presbyterian Church and wanted him to change his will in this regard, and so expressed himself to him. And we may concede this showed on his part a grasping disposition. But these are not the questions to be decided in this proceeding. The question here is: Is there any reliable evidence before us that Thomas Allison was so far without mind as not to know the natural objects of his bounty, the property he owned and what disposition he wanted to make of it when he made his will on August 16, 1902, or that Jonathan Allison exercised undue influence over him when he made it, so that we could say that he was coerced into making it, and that its making was not his act ? We are clearly of the opinion that the testimony submitted to the court would not supports finding in favor of the contestants on either of these questions; and if a jury so found, the court would be constrained to set the verdict aside and grant a new trial. The issue prayed for should therefore be refused. A jury should not be permitted to guess that there was testamentary incapacity at the time the will was executed, or that the will was the result of undue influence because they might think that a former will made a better disposition of the testator’s property than the will contested, and that influence had been brought to bear on him to make the change. Testamentary incapacity or undue influence must be proven before a will can be legally set aside. As our Supreme Court has held: “ The law presumes that every one of full age competent to make a will, is of sufficient mental capacity to do the act; and allegations to the contrary must be proved. Testamentary capacity is the normal condition of one of full age, and the affirmative is with him who undertakes to call it in question, and this affirmative he must establish, not in a doubtful but in a positive manner : ” Grubbs v. McDonald, 91 Pa. 236.
    Undoubtedly undue influence may so operate as to destroy a will, for in such a case the testator is not a free agent; he becomes the mere implement of another’s craft, and his testament that of a superior will. But influence short of this is not what is technically known as undue influence. The term has. been carefully defined, and its effect considered in many of our own cases. According to these cases, undue influence may be exercised either through threats or frauds ; but however used it must, in order to avoid a will, destroy the free agency of the testator at the time and in the very act of making the testament. Solicitations, however importunate, cannot of themselves constitute undue influence, for though they may have a constraining effect, they do not destroy the testator’s power to freely dispose of his estate: Englert v. Englert, 198 Pa. 326.
    And now, September 26, 1903, this citation came on to be heard and was argued by counsel, whereupon, upon due consideration, the issue prayed for is refused and the petition dismissed at the cost of the petitioners.

      Error assigned was the decree of the court.

      John II. Murdoch, with him Edgar B. Murdoch, W. S. Parker, Winfield Mcllvaine and Norman E. Clark, for appellants,
    cited ; Palmer’s Estate, 24 W. N. C. 159 ; Cozzens’s Will, 61 Pa. 196 ; DeHaven’s Appeal, 75 Pa. 337 ; Schwilke’s Appeal, 100 Pa. 631; Herster v. Herster, 116 Pa. 612.

      T. F. Birch, for appellees,
    cited: Kane’s Estate, 206 Pa. 204; Miller v. Oestrich, 157 Pa. 264; Cauffman v. Long, 82 Pa. 72; Tasker’s Estate, 205 Pa. 455; Roberts v. Clemens, 202 Pa. 198; McMahon v. Ryan, 20 Pa. 329; Eckert v. Flowry, 43 Pa. 46 ; Thompson v. Kyner, 65 Pa. 368; Tawney v. Long, 76 Pa. 106 ; Wainwright’s Appeal, 89 Pa. 220 ; Harrison’s Appeal, 100 Pa. 458; Trost v. Dingler, 118 Pa. 259.
    November 4, 1904 :
   Pee Ctjbiam,

The decree is affirmed on the opinion of the court below.