author: Mr. Justice Stewart,

text:
    Delaware, Lackawanna & Western Railroad Company v. Tobyhanna Company, Limited.

      Real estate — Railroads—Adverse possession — Statute of limitation— Lands owned by railroad not part of right of way.

    1. Land purchased by a railroad company outside of its right of way for railroad purposes generally, not present but prospective, but never actually dedicated to public use, is subject to the statute of limitations, and title to it may be acquired as against the company by adverse possession.
    2. Nothing is included in the right of way of a railroad company except what is subject to condemnation, and when a railroad company asserts a public use in land it has purchased, to overcome the adverse possession by another, its claim can only be sustained by showing the existence of conditions which would have permitted it to condemn the land in the first instance, or actual dedication to such use; if such conditions exist, it may recover what it has lost by appropriate proceedings; if these do not exist, it is fairly persuasive that they never did.
    3. A railroad company chartered prior to the General Railroad Law of February 19, 1849, P. L. 79, and authorized to occupy for the purpose of building its road “land which shall be necessary or suitable for the intended road,” is restricted, when its right to take land is chailenged, to only such quantity of land as is necessary and essential for the purpose designated by its charter.
    4. In an action by a railroad company to recover possession of a lot of land purchased by the company fifty years before the suit was brought, but never dedicated to public use, the defendant is entitled only to so much of the lot as was actually occupied by its structures adversely for more than the statutory period; but it will not be entitled to the whole of the lot where the evidence shows that the portion of the lot not occupied by the defendant’s structures was open and used by the public without restraint in hauling material for shipment from the railroad company’s siding.
    Argued March 7, 1911.
    Appeals, Nos. 44 and 32, Jan. T., 1911, by plaintiff and defendant, respectively, from judgment of C. P. Monroe Co., Dee. T., 1907, No. 22 on verdict for plaintiff in case of The Delaware, Lackawanna & Western Railroad Company v. The Tobyhanna Company, Limited.
    Before Fell, C. J., Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Ejectment for land in Coolbaugh township. Before Staples, P. J.
    This appeal is from a retrial after a reversal of a former judgment in favor of the plaintiff. See 228 Pa. 487.
    The facts are stated in the opinion of the Supreme Court, and in the report of the former appeal.
    Plaintiff presented the following points:
    1. The land claimed by the defendant by adverse possession having been purchased by the plaintiff for railroad purposes, and having been used for the construction of switches adjacent to and diverging from its main track, was held by the said railroad for a public use, under the grant of its right of way, and no title could be acquired by the defendant to the surface of any portion of what was used for such a purpose, by adverse possession, however long continued.
    2. The defendant having purchased the lot of land 700 feet in length and 125 feet in width from the center between main tracks, and having used the same for one of its main tracks, for switches, sidings and passenger station, freight station and necessary platforms and approaches thereto, such use was a public use and made the entire lot part of a public highway, and title cannot be obtained to any portion of the same by adverse possession, however long continued.
    3. It is the undisputed evidence that the plaintiff used the piece of land 700 feet long and 125 feet in width as a part of its right of way, and for public use, and that all parts of it were continuously used so except that physically and actually occupied by the buildings of the defendant; and as to this part, the defendant could gain no title by adverse possession, because its possession was an encroachment upon the right of way .of the railroad company.
    4. There is no particular width of land recognized by the law of Pennsylvania as the right of way of a railroad. This right of way consists of a strip of land of varying widths as the necessities of the railroad may require for the construction of its main tracks, sidings, turnouts, switches, stations and approaches thereto.
    5. When land is acquired by a railroad corporation, either by purchase or condemnation, and is actually used for its railroad, no title can be gained to any portion of what is then used by adverse possession, however long it may be continued.
    The court charged in part as follows:
    [The court cannot agree with either one of the contentions of the parties in this case, because the plaintiff replies to the contention of the defendant, that it never has had adverse possession of this property, because it has been used by the public and by the plaintiff company for a number of years, and in addition to that, that it is within its right of way, and that no adverse possession can be obtained against the right of way of a railroad company, and therefore the defendant is not entitled to any part of this land. Adverse possession, or the right to property by adverse possession, is where a person, or a corporation, if you please to call it so, which is an artificial person, has had the exclusive, continuous, uninterrupted, notorious and adverse possession of a piece of land for twenty-one years. You will notice all the elements that are there. It must be open, which is nearly the same as notorious, exclusive, continuous, uninterrupted and adverse, and in order for you to sustain the contention of the defendant company in this particular as to the whole lot of land, you would have to find it, with those qualifications; and while that question is for you, gentlemen of the jury, the court is of the opinion, under all'the testimony, that it is not warranted by it; that is, as to the whole tract, because it was not fenced in (there was a fence on the lower side of it) and it was used according to some of the evidence, if you believe it, by the public generally, including the railroad company, and by teams, etc,, and notwithstanding the fact that there were certain acts done upon this lot by the defendant company, including the piling of piles and other lumber there for the purpose of shipment on the Delaware, Lackawanna & Western Railroad, that that would not come up to the full measure of proof that would be required to give exclusive possession to this whole tract of land. And I think we will go so far as to instruct you, gentlemen of the jury, that under the evidence there is not sufficient to warrant such a conclusion on your part. We do say to you, however, that while it may not have had the exclusive possession of all of this land, that under the evidence of the defendant company, if you believe it, and we see no reason why you should not, because it is uncontradicted, the defendant company had constructed on this piece of land, about seven or eight feet of its office and a feed house, and that they had been there for very much longer than twenty-one years; and that in addition to that, they had used this feed house and the cellar under the store, the entrance to which was on what is claimed to be the railroad side of the line, and if you find, from all the evidence in the case, that the defendant company has used this land in this way, the storehouse and the feed house, and has for a period of over twenty-one years used the land in order to have access to the feed house and the storehouse, we say to you that as far as those two places are concerned, the office and the feed house, that it would have such adverse possession, if you believe it was open, notorious, exclusive, continuous and uninterrupted for a period of twenty-one years, as would prevent the plaintiff company from recovering, as far as they, the buildings and land under them are concerned, in this action of ejectment.] [1]
    [As to the other buildings that were put upon these premises, which according to the testimony as we recollect it, varied from seven to ten years, namely, the shed and the coal bin, we say to you that there being no such evidence of adverse possession for the period required by law, and for the land upon which they stand, the plaintiff is entitled to recover, and that for all the other land in this tract not occupied by .these buildings, the. office and the feed house, .we say to you that the railroad company is entitled to recover, subject as we have stated to the right of the defendant company to have access to its office and cellar under the office and to its feed house.] [2]
    [If you find, therefore, that the defendant company did have adverse possession under the qualifications as made by the court, and as we say to you, gentlemen of the jury, in the court’s opinion, the evidence warrants you in so finding, although the question is for you, — we say to you that your verdict should be in favor of the plaintiff for the land upon which the horse shed is erected; the land where the coal bin is erected, and all the other land not covered by the feed house and the office, subject to the right of the defendant company to free access to and from the office, the cellar thereof, and the feed house as it has been'wont to have for a period of twenty-one years, and over.] [3]
    Verdict for plaintiff for all the land mentioned in the writ of ejectment except that covered by the part of the office of the defendant company on the said land mentioned in said writ, and that covered by the feed house with the privilege to the defendant company of access to the cellar under said office, and said feed house over the land aforesaid. Both plaintiff and defendant appealed.

      Errors assigned by plaintiff were the refusal of the five points quoted above.

      Errors assigned by the defendant were (1-3) portions of charge quoted above.

      A. Mitchell Palmer, for The Delaware, Lackawanna & Western Railroad Company.
    — Title by adverse possession cannot be acquired as against a railroad company to a portion of its right of way: Perkiomen R. R. Co. v. Kremer, 218 Pa. 641; Reading Co. v. Seip, 30 Pa. Superior Ct. 330; Lehigh Valley R. R. Co. v. Frank, 39 Pa. Superior Ct. 624; Glisson v. R. R. Co., 15 Pa. D. R. 369; Wilmington & Northern R. R. Co. v. Walker, 15 Pa. D. R. 373; Northern Pac. Ry. Co. v. Townsend, 190 U. S. 267 (23 Sup. Ct. Repr. 671).
    The plaintiff is not controlled by any limitation in the act of 1849, except those limitations contained in the eighteenth section thereof. The very nature of a railroad construction makes it impossible for actual, physical possession to cover every foot of the right of way, and no argument can be based upon the failure of the railroad company to occupy the entire width which it acquired for the facilities which the act of 1849 authorized it to widen its right of way to include. The same argument would permit a trespasser to gain title to any part of a public highway outside of that actually and constantly used by the public. When a railroad company condemns land, it is of necessity the judge of how much is required for its use, and this question should not be submitted to a jury in a subsequent action of ejectment against a railroad company: Pittsburg, Ft. Wayne & Chicago Ry. Co. v. Peet, 152 Pa. 488; Pittsburg Jet. R. R. Co.’s App., 122 Pa. 511; Hummel v. R. R. Co., 175 Pa. 537; Lake Shore & Mich. So. Ry. Co. v. Railway Co., 8 Fed. Repr. 858; Wilmington & Northern R. R. Co. v. Walker, 15 Pa. D. R. 373.
    If a plaintiff in ejectment claims title by twenty-one years’ adverse possession, he must prove every element necessary to constitute a title under the statute of limitations; otherwise it is the duty of the court to instruct the jury that there is not sufficient evidence to entitle him to recover: DeHaven v. Landed, 31 Pa. 120; Armstrong v. Caldwell, 53 Pa. 284; Huffman v. McCrea, 56 Pa. 95; Horton v. Davidson, 135 Pa. 186; Deppen v. Bogar, 7 Pa. Superior Ct. 434; Wickham v. Sutton, 33 Pa. Superior Ct. 368.

      F. B. Holmes, for The Tobyhanna Company, Ltd.
    — An actual adverse possession of land for twenty-one years gives title not only to that part of it which was cleared and cultivated, but to ad that was included within marked lines during that period. Bell v. Hartley, 4 W. & S. 32; Hoey v. Furman, 1 Pa. 295; Fitch v. Mann, 8 Pa. 503; Green v. Kellum, 23 Pa. 254; Sailor v. Hertzog, 4 Wharton, 259; Thompson v. Kauffelt, 110 Pa. 209; Thompson v. Coal & Iron Co., 133 Pa. 46; Griffin v. Mulley, 167 Pa. 339; Mason v. Ammon, 117 Pa. 127; Potts v. Everhart, 26 Pa. 493.
    A mere permissive use by the public as a street of a piece of ground left open by the owner in front of his property and concurrently used by himself in his own business and for his own convenience will not work a dedication to public use, nor will it confer upon the public any right as against the owner: Frankford & S. P. City Pass. Ry. Co. v. Phila., 175 Pa. 120; Weiss v. So. Bethlehem Boro., 136 Pa. 294.
    The special circumstances which justify the corporation in taking more than sixty feet, must be shown by the company, and it has no right to condemn land in excess of sixty feet in width, except in the cases enumerated in the statute: Curtis v. Columbus & Erie R. R. Co., 16 Pa. D. R. 1017; Robinson v. R. R. Co., 161 Pa. 561; Plymouth R. R. Co. v. Colwell, 39 Pa. 337; Cumberland Valley R. R. Co. v. McLanahan, 59 Pa. 23.
    May 23, 1911:
   Opinion by

Mr. Justice Stewart,

If the record in the first of these appeals discloses any material fact that was not considered, or any question that was not decided when the case was before us in the former appeal reported in 228 Pa. 487, it has escaped us. We see no ground whatever for misapprehension of what was there decided; but inasmuch as the “tremendous importance of the question raised not only to the plaintiff, but to all the railroads' of Pennsylvania” is urged upon us, we shall endeavor to restate what was there decided in a way which will remove all possible ground for misunderstanding, as well any lurking suspicion that that decision conflicts with settled doctrine. First of all let it be understood that we did not there hold that title to any part of a railroad company’s right of way can be acquired by adverse user. We distinctly held that that question was not before us, and we expressed no opinion in regard thereto. The contention of the plaintiff was that the lot in dispute was part of its right of way. This was denied by the defendant, and into that inquiry we entered at some length. Our conclusion was adverse to the plaintiff’s contention on the facts before us. We have here the same facts to deal with. The lot was acquired by the railroad company more than fifty years ago by purchase. Its railroad had then been constructed upon land adjoining, and was then being operated. How the company entered upon that land originally we are not informed. To perfect its right of occupancy it subsequently purchased from the owner a strip of land 700 feet in length and 100 feet in width; that is to say, the ground used as its roadbed, with fifty feet of ground on either side of its center line. It acquired by the same conveyance, but as a separate tract, the lot in dispute, thus described in the conveyance, “Also such additional lands for depot or railroad purposes at ... . Tobyhanna stations, as are included within the boundaries following, to-wit: At Tobyhanna, beginning with the centre line of said railroad at a point one hundred feet north of the north corner of the foundation of the water tank and running thence westerly on a line at right angles with the line of the said railroad one hundred and twenty-five feet in width to a corner; thence southerly parallel with and one hundred and twenty-five feet from the center line of said railroad, seven hundred feet to a corner;-thence easterly on a line at right angles with the line of said railroad, one hundred and twenty-five feet to the center line of said railroad; thence along said centre line seven hundred feet to the place of beginning. Thus including on the westerly side of the railroad for the said distance of seven hundred feet seventy-five feet in width over and above and outside of said one hundred feet hereinbefore conveyed for right of way.” This lot has for years been bisected by a public road, dividing it into two nearly equal parts. The controversy is over one of these. The contention of the plaintiff assumes that the lot is part of the railroad’s right of way. Herein consists the fallacy. The fact that it was acquired by purchase, and not in the exercise of the company’s right of eminent domain, we regarded as a matter of significance; not that a railroad company may not acquire its right of way in either manner, but because certain incidents attach in the one case that do not in the other. A railroad company can acquire adversely to the owner by condemnation when it establishes a purpose in the condemnation falling within the express letter of the law, giving it the franchise to take: whereas by purchase nothing adversely can be acquired. In the one case the fact of condemnation indicates a public use; and that fact becomes established by the appropriation; in the other, it indicates nothing, and establishes nothing but title in the acquisitor. A railroad company may lawfully acquire lands not strictly essential to the operation of its road, but which may conveniently and profitably be used in connection therewith; but it is only for the acquiring of such as are essential that the law makes provision by allowing the high franchise to be exercised for their procurement. These essentials are a roadway, not exceeding a given width, except where physical conditions require greater places selected for sidings, turnouts, depots and engine or water stations. If it be conceded that these essential lands properly fall within what, for the want of a better term, we call right of way, and when acquired by condemnation are impressed with a public use, and therefore not to be interfered with, the question remains, can as much be affirmed of a strip of land such as that here in dispute, acquired by purchase, without any adjudication that when acquired it was needed for one of the purposes for which condemnation was allowed? We answered that question in the former appeal in the negative, and we repeat the answer here. That is to say, no presumption arises from the fact of purchase that the land so acquired was for necessary purposes in connection with the operation of the railroad. Had the railroad company at that time attempted to acquire this land by condemnation, the burden would have been upon it to show that it was necessary and essential; the declared public use would have become a matter of record, and the land could not thereafter have been devoted to other purposes. The mere act of purchase committed the company to no particular use of the land. It may say to the party from whom it purchases, we want it for some purpose for which we could legally condemn it; and in the deed the vendor may recite that it is conveyed for such purpose; but this impresses no use in which the public is concerned or could enforce; it remains a matter that concerns only vendor and vendee. What then will impress it with a public use and bring it within the sanctity of right of way? We answer nothing but an actual dedication of the land to that use by so employing it, or other equally decisive act. The plaintiff company had laid its tracks upon and over the land embraced in a larger strip, thus devoting it to a plain and manifest public use in an unmistakable way. If it has built switches upon the land acquired by purchase, that again is a decisive act which secures it in the enjoyment of the land acquired. But as to so much of this land as is now claimed by the defendant through adverse use, the plaintiff has done absolutely nothing upon it to indicate any purpose whatever it had in acquiring it. Up to the present time it has been free to dispose of it, or apply it to any lawful use except as its vendor can be heard to question its right so to do. For the company to say now, more than a half a century after the acquisition, that it needs it for a purpose for which it could have originally condemned it, is not only to beg the question, but in'itself affords a refutation of the claim. Fifty years and more have elapsed since it acquired title and during all that time, upon its own admission, the lot has not been required for the exercise of its franchise. How then could it have been acquired by condemnation? We are not overlooking our decisions to the effect that a railroad company may in condemning land anticipate future needs with respect to those things which are essential. We make no attempt to define the limits to this right of anticipation when we say, that attempted provision covering a period of fifty years in matters of this kind must either be pure conjecture resting on no substantial basis, or inspired prophecy, and with respect to condemnation of land the law bases its procedure on neither. Our effort has been to show the fallacy in the assumption on which the argument on behalf of the plaintiff proceeds that the land in dispute, by the fact of purchase, became a part of the railroad company’s right of way. To be a part of its right of way it must have been acquired as such by condemnation proceedings, or if acquired by purchase, the burden must be on the railroad when its right to hold is challenged to show such circumstances as would have warranted its condemnation. We state no new proposition. All that we have said has fullest warrant in Shamokin Valley Railroad Co. v. Livermore, 47 Pa. 465. In Robinson v. Railroad Co., 161 Pa. 561, it is said by Mitchell, J., “It is not intended to interfere with the discretion of the corporation in the location of its stations, sidings, etc., nor with its right to do what good engineering required, but the exercise of both must be in good faith for the purposes the statute permits, and the necessity, extent and location of extra appropriations for such purposes must be definitely shown. The charter limitation of sixty-six feet is mandatory, except in the cases the charter itself specifies, and it cannot be set aside or evaded at mere will. While the discretion is in the corporation, its exercise, when challenged in a court of law, must like every right be sustained by showing the circumstances under which the charter authorizes it.” To summarize: (1) however true it may be that no part of the right of way of a railroad company can be acquired adversely, there is no authority for holding that property of a railroad not included in its right of way may not be so acquired; (2) nothing is included in right of way except what is the subject of condemnation, and when a railroad company asserts a public use in land it has purchased, to overcome the adverse possession by another, its claim can only be sustained by showing the existence of conditions which would have permitted it to condemn the land in the first instance, or actual dedication to such use; (3) if such conditions exist to-day, it may recover what it has lost by appropriate proceedings; (4) if these do not exist, it is fairly persuasive that they never did.

So far we have proceeded on the assumption that appellant has no other or wider privilege of condemnation than is allowed under the General Railroad Law of February 19, 1849, P. L. 79, and its supplements. The claim is made that it is not subject to the limitations and restrictions of that act inasmuch as it has succeeded to all the rights and privileges of the Ligetts Gap R. R. Co., incorporated under the Act of April 7, 1832, P. L. 316, and by the subsequent Act of April 14, 1851, P. L. 628, merged with appellant company, and that the charter of the earlier company contains no restriction as to the amount of land the company could appropriate. A reference to the charter of that company shows that the power granted was in express terms limited to the appropriation of such land as was necessary for the exercise of the corporate franchise. The company was authorized “to occupy for that purpose (the building of its road) land which shall be necessary or suitable for the intended railroad.” The act of February 19, 1849, gives exactly the .same right, the only difference being that the latter defines expressly what are necessary and essential purposes. Certainly quite as much land was required for the construction of railroads and their operation in 1849 as in 1832. The limitation of the right to lands necessary for the intended road, fixed upon the earlier company the same burden that rests upon the appellant company when its right to take lands .is challenged, of showing the necessity that requires it. The assignments of error on this appeal are overruled.

We have yet to consider the appeal by the defendant from the same judgment. The verdict was a recovery by the plaintiff of all the land in dispute except so much as had been occupied by the defendant’s structures for more than the statutory period. The defendant claimed title to the entire lot by adverse possession. As we read the charge of the court it was a binding instruction to the effect that the defendant’s evidence was not sufficient in law to overcome the plaintiff’s written title except as to so much as was covered by defendant’s improvements. The jury certainly so understood it. Was this error? We have examined the evidence with much care without being convinced that the instruction was erroneous. It lacks one essential — the possession shown was not exclusive. Certainly it was not of such a character as to put the plaintiff on notice. The circumstances suggest a permissive use rather than a hostile holding. The defendant’s occupancy and use of the land was in some respects peculiar to itself, but nevertheless others used it for their own purposes with a like freedom. It was an open lot admitting of public travel upon and over it from all points. The public used it without restraint in hauling material for shipment from the plaintiff’s siding. The principal use of it by defendant was for storing lumber for like shipment. The evidence indicates strongly that the lot was regarded by the public as a common. Their use of it, concurring with that of the defendant, without let or hindrance, is wholly inconsistent with defendant’s claim that it was during this period holding hostilely to the plaintiff. The assignments of error in this appeal are likewise overruled, and the judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Meyer’s Estate
    (No. 1).

      Husband and mfe — Estate by entireties — Act of June 8, 1893, P. L. 344 — Bankruptcy.
    1. The Act of June 8, 1893, P. L. 344, entitled, “An Act, relating to husband and wife, enlarging her capacity to acquire and dispose of property, to sue and be sued, and to make a last will, and enabling them to sue and testify against each other in certain cases,” does not change the nature of the wife’s estate nor destroy the legal unity of the relation between husband and wife, and consequently does not abolish an estate by entireties existing in a husband and wife.
    2. Where a testator gives his residuary estate to his daughter and her husband “absolutely and forever as tenants by entireties,” a trustee in bankruptcy of the husband is not entitled, during the life of the wife, to any part of the principal or income of the estáte.
    Argued March 21, 1911.
    Appeal, No. 77, Jan. T., 1911, by Charles J. Weiss, Trustee in Bankruptcy, from decree of O. C. Phila. Co., April T., 1904, No, 193, dismissing exceptions to adjudication in Estate of C. A. Adolph Meyer, deceased.
    Before Fell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to adjudication.
    From the record it appeared that testator died December 19, 1902, leaving a will by which he gave his residuary estate to his daughter, Clara L. Beihl, and her husband, Ernest H. Beihl, “absolutely and forever, as tenants by entireties.” On July 2, 1909, Ernest H. Beihl was adjudicated a bankrupt by the United States district court, and Charles J. Weiss was appointed his trustee in bankruptcy. The trustee in bankruptcy claimed that one-half of the fund before the court should be awarded to him as the property of the bankrupt. ■ The auditing judge disallowed the claim.
    Exceptions to the adjudication were dismissed by the court.

      Errors assigned were in dismissing exceptions to the adjudication.

      George P. Rich, for appellant.
    — -Under the Act of June 8, 1893, sec. 1, P. L. 344, estates by entirety are entirely wiped out; and this fund, decedent’s will having been made after the passage of the act, now belongs to Beihl and his wife, not as tenants by entirety, but as tenants in common; therefore the husband’s half interest in the fund has, under the provisions of the bankrupt act, passed to and should be awarded to the trustee: Fairchild v. Chastelleux, 1 Pa. 176; French v. Mehan, 56 Pa. 286; McCurdy v. Canning, 64 Pa. 39; Dexter v. Billings, 110 Pa. 135; Lodge v. Hamilton, 2 S. & R. 491; Frankenfield v. Graver, 7 Pa. 448; Rees v. Waters, 9 Watts, 90; Ward v. Ward, L. R. 14 Ch. Div. 506; Diver v. Diver, 56 Pa. 106; Gillan’s Exrs. v. Dixon, 65 Pa. 395; Holcomb v. People’s Bank, 92 Pa. 338; Bramberry’s Estate, 156 Pa. 628; Parry’s Est., 188 Pa. 33; Merritt v. Whitlock, 200 Pa. 50.

      Harvey Gourley, for appellees.
    — The nature of the wife’s estate as a tenant of the entirety with her husband is not changed by the provisions of the act of June 8, 1893, enlarging the powers of married women: Hoover v. Potter, 42 Pa. Superior Ct. 21.
    May 23, 1911:
   Opinion by

Mr. Justice Stewart,

The appeal is by the trustee in bankruptcy of the estate of Ernest H. Beihl from a decree of the orphans’ court in the adjudication of the account of the trustees under the last will of C. A. Adolph Meyer, deceased, awarding the fund before the court to Ernest H. Beihl and Clara, his wife. The appellant claims the fund in virtue of his office in bankruptcy; the appellees on the ground that the estate vested in them as husband and wife. It is not questioned that under the will through which this estate was derived, husband and wife took by entireties, if indeed such estate may still be created. The contention of appellant is that this venerable and unique common-law estate has been abolished in Pennsylvania by the Act of June 8, 1893, P. L. 344, not in express terms, but by unavoidable implication. The act of June 8, 1893, was meant as a substitute for the earlier Act of June 3,1887, P. L. 332, which it expressly repeals. The primary object in each was the same — to emancipate married women from restraints and disqualifications with which they had been fettered by the common law. The later act embraces within its scope all that was gained for married women by the earlier; and at the same time it removes other disqualifications which the earlier left undisturbed; but it can no more be affirmed of one than of the other, that it discloses a legislative purpose to change the nature of any estate which married women could theretofore have acquired, or destroy or in any way interfere with the legal unity which characterizes the relation of husband and wife, in deference to which and for its better protection perhaps, this peculiar estate by entireties was invented. The title to the act of 1887 reads: “An act, relating to husband and wife, defining the rights to and over their property, to make conveyances and contracts, authorizing them to sue and be sued on their contracts, and for torts, and defining the interest of husband and wife in the estate of each by will or otherwise.” The title to the act of 1893 reads, “An act, relating to husband and wife, enlarging her capacity to acquire and ■dispose of property, to sue and be sued, and to make a last will, and enabling them to sue and testify against each, other in certain cases.” Since it is squarely ruled in Bramberry’s Estate, 156 Pa. 628, that the act of 1887 was, like the act of 1848, intended to protect the property of the wife from the dominion or control of the husband but not to change the nature of her estate, or destroy the legal unity of the relation, it follows that the present contention can be sustained only as it can be shown that the act of 1893, in its advance upon the act of 1887, unmistakably discloses a purpose to change the nature of the married woman’s estate which she holds by entireties, and reduce it to a tenancy in common. The provision in the act which it is thought reveals such purpose is as follows: “That hereafter a married woman shall have the same right and power as an unmarried person to acquire, own, possess, contract, use, lease, sell or otherwise dispose of any property of any kind, real, personal or mixed, and either in possession or expectancy, and may exercise the said right and power in the same manner and to the same extent as an unmarried person,” etc. The argument on behalf of appellant proceeds: “In fact it is difficult to conceive how' there can be much broader language severing the legal fiction of unity between husband and wife and putting her, with respect to any property that she may own, on an equal footing with men.” A.comparison of this provision in the later act with that which more nearly corresponds in the earlier, will show how utterly unimportant, in this particular connection, is the change introduced. It reads, “Hereafter marriage shall not be held to impose any disability or incapacity in a married woman, as to the acquisition, ownership, possession, control, use or disposition of property of any kind, in any trade or business in which she may engage or for necessaries, and for the use, enjoyment and improvement of her separate estate, real or personal; or her right and power to make contracts of any kind, and to give obligations binding herself therefor; but every married woman shall have the same right to acquire, hold, possess, improve, control, use or dispose of her property, real and personal, in possession or expectancy, in the same manner as if she were a feme sole, without the intervention of any trustee, and with all the rights and liabilities incident thereto, except as herein provided, as if she were not married, and property of every kind owned, acquired or earned by a woman, before or during her marriage, shall belong to her, and not to her husband or his creditors,” etc. If it can be said of the earlier act that no intent can be discovered therein to change the nature of the estate of a married woman, or to destroy the legal unity of husband and wife, with quite as much reason can the same be affirmed of the later, whether regard be had to the title or the provisions above quoted. It is unnecessary to repeat here the reasoning of the court in the case above cited. It was satisfactory to the court then, and its correctness has never since been questioned. With the judicial interpretation of the act of 1887, to the effect that it did not change estates by entireties, it is hardly supposable that when the legislature in 1893 came to substitute another act for that, if the intention was to put an end to “the legal fic'tion of unity between husband and wife,” and abolish such estates, that it would have left such intent to be derived by implication, and that too, from provisions in the substitute which no more clearly indicate such intent than those in the act repealed, to say nothing of its rejection of the easier, simpler and more certain method it. might have adopted, the enacting in a single line that thereafter estates in entire-ties should be held as estates in common. Were there nothing else in the case to forbid the implication which the appellant seeks to raise, that feature of the act of 1893 which limits the right of the wife to divide her estate or protect it from the husband by adverse legal proceedings only in case the husband has deserted, or refused to support her, would be sufficient in itself. This qualification and restriction of the right to sue the husband shows clearly, that however much the identity of relation has suffered by modern legislation, enough of it remained to call for the protection of the wife against the husband at least to the extent of leaving existing estates by entireties untouched. We find nothing in the case supporting appellant’s contention, and therefore overrule the assignments of error which challenge the action of the court in denying him participation in the fund..

It is further complained of as error that the court refused to order proper security to be given for the payment to the trustee of one-half the income arising during the life of the wife from the fund for distribution. Whatever the rights of the trustee may be with respect to the fund in the event of the husband surviving his wife, it is too plain for discussion that, except as estates by entirety no longer exist, he can have no present right of enjoyment. We have just held that they do still exist. In estates of this kind husband and wife are not joint tenants or tenants in common, but both are seized of the entirety, per tout et non per my. As a consequence neither can dispose of any part without the consent of the other, but the whole must remain to the other. It follows that the interest of the appellant in the fund in dispute, under all our authorities defining this kind of estate, and its characteristics, is at most a contingent one; he is not presently substituted for the husband, and cannot be. His right to the use and enjoyment of any part of the fund must await the happening of the contingency of the husband surviving the wife. Until that happens the wife’s right to the enjoyment of the whole may not be disputed by anyone claiming under the husband. The very enlightening discussion of the subject in the able opinion of Judge Thayer, approved and adopted by this court in McCurdy v. Canning, 64 Pa. 39, and which has consistently been followed, makes further citation of authority for the views here expressed, unnecessary. This assignment of error is likewise overruled and the appeal is dismissed.


text:
    Meyer’s Estate
    (No. 2).

      Husband and wife — Estate by entireties — Act of June 8, 1893, P. L. 344 — Bankruptcy—Security.
    1. Where a residuary estate has been given by will to a husband and wife as tenants by entireties, the orphans’ court cannot, in awarding the fund to the husband and wife, require them to enter security for the protection of the husband’s trustee in bankruptcy, in the event of the husband surviving the wife.
    2. The Married Woman’s Act of June 8, 1893, P. L. 344, did not abolish estates by entireties.
    Argued March 21, 1911.
    Appeal, No. 79, Jan. T., 1911, by Ernest H. Beihl and Clara L. Beihl, his wife, from decree of O. C. Phila. Co., April T., 1904, No. 193, sustaining exception to adjudication in Estate of C. A. Adolph Meyer, deceased.
    Before Fell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Decree modified.
    Exceptions to adjudication.
    From the record it appeared that Clara L. Beihl and her husband, Ernest H. Beihl, were tenants by entireties under the will of testator. The fund was awarded to them notwithstanding the claim of Charles J. Weiss, trustee in bankruptcy of Ernest H. Beihl, to one-half of the fund.
    The trustee filed the following exception to the adjudication:
    3. The learned judge further erred in awarding the whole of the said fund to Clara L. Beihl and her husband Ernest H. Beihl as tenants by entirety, without making any provision for the protection of the rights of the said Charles J. Weiss as trustee in bankruptcy of the said Ernest H. Beihl.
    The court in an opinion by Gummey, J., sustained the exception and directed that security should be entered in the sum of $11,000 for the protection of the trustee in bankruptcy in the event of the husband surviving the wife.

      Error assigned was the decreé of the court.

      Harvey Gourley, for appellants.

      George P. Rich, for appellee.
    May 23, 1911:
   Opinion by

Mr. Justice Stewart,

This appeal is from the same decree that was considered in the preceding case, Meyer’s Est., No. 1, ante, p. 89. There the appeal was by the trustee in bankruptcy alleging error in awarding the fund to the appellees, and in the refusal of the court to require security in advance of actual distribution for the payment of one-half the income of the fund as it accrued, to the trustee in bankruptcy of the husband’s estate. Here the appeal is by the parties awarded the fund, husband and wife, from so much of the decree as required of them, before receiving the fund, security for the payment over to the trustee in bankruptcy of one-half the fund in the event of the husband surviving , the wife. In the other appeal we held that the trustee in bankruptcy acquired nothing but a contingent interest; that inasmuch as the husband and wife held by entireties, no present right of enjoyment resulted to one claiming through the husband or in his right, and that the demand for security for the income was properly refused. The wife’s right to present enjoyment of the estate, is not to a part, but to all of it; and this may not be denied her in order to protect a contingent interest of one claiming through the husband. To impose such condition upon the exercise and enjoyment of her right, as was here, directed, resolves the estate into a tenancy in common. Being an estate by entireties neither husband nor wife could, under any circumstances, require an accounting by the other; nor could either restrain the other against consuming more than an equal part. The effect of requiring security as a condition of the wife’s enjoyment of her estate, would be to restrain consumption by her of her own property in order that her husband’s creditors might be pro-. tected. She received the estate on no such condition. It is hers to consume if she so desires. The husband would be powerless to prevent it by legal proceedings, and those claiming under him have no higher rights. This appeal is sustained, and the decree is modified by striking therefrom the order for security for the protection of the trustee in bankruptcy, in the event of the husband surviving his wife, in the sum of $11,000, before distribution is made to the appellants, of the award to them under the adjudication ; and as so modified the decree is affirmed. The costs on the appeal to be paid by the appellees.


text:
    Weiss, Appellant, v. Beihl.

      Husband and'wife — Estate by entireties — Bankruptcy of a husband— Equity — Injunction.
    A trustee in bankruptcy of a husband has no standing to maintain a bill in equity to restrain the husband and his wife from alienating property which they hold as tenants by entireties.
    Argued March 21,1911.
    Appeal, No. 373, Jan. T., 1910, by plaintiffs, from decree of C. P. No. 1, Phila. Co., Sept. T., 1910, No. 1,465, dismissing bill in equity in case of Charles J. Weiss, Trustee in Bankruptcy of the Estate of Ernest H. Beihl, a bankrupt, both individually and trading as E. H. Beihl & Company, v. Ernest H. Beihl and Clara L. Beihl, his wife, and the said Ernest H. Beihl and The Integrity Title Insurance, Trust & Safe Deposit Company, Trustees under the will of C. A. Adolph Meyer, deceased.
    Before Fell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction.
    For the facts see Meyer’s Estate, No. 1, ante, p. 89, and Meyer’s Estate, No. 2, ante, p. 95.

      Error assigned was decree dismissing the bill.

      George P. Rich, for appellant.

      Harvey Gourley, for appellee.
    May 23, 1911:
   Opinion by

Mr. Justice Stewart,

The facts on which this suit in equity was based are fully recited in the two appeals next preceding, from the decree of the orphans’ court of Philadelphia, Meyer’s Est., No. 1, and Meyer’s Est., No. 2, and need not be here repeated. Those appeals superseded this, and the conclusion arrived at in them settles all that was involved in the bill filed in this case. The bill was filed before the trustees had settled their account and prayed an injunction restraining Beihl and his wife from alienating the property and further relief. The bill was demurred to and the demurrer sustained. The appeal is from that decree, and it is dismissed.


text:
    Stirk’s Estate.

      Will — Charitable bequest — Death within thirty days — Alternative bequest — Fraud.
    1. Where a woman executes her will by which she gives her residuary estate, amounting to $340,000, to a charity, and immediately thereafter executes a codicil in which she states that as there may be a question of the legality of the bequest to the charity if she dies within thirty days from the date of her will she revokes the gift to the charity and gives her residuary estate to a trust company, such gift to the trust company cannot be sustained, where it appears that the trust company in question was a stranger to testatrix, that she was not a stockholder therein nor a depositor, that the will and codicil were prepared by an assistant trust officer of the company, that the codicil was prepared with the name of the residuary legatee left blank, that when the scrivener asked the testatrix to whom she wished her residuary estate to go in case of her death within thirty days, she said: “Give that to tbe company,” naming the trust company, and that both the testatrix and the scrivener must have intended, without openly stating it, that the gift to the trust company was simply to meet the requirements of the law and carry the bequest to the charities designated in the will.
    2. In such a case the action of the scrivener constituted a constructive fraud which would prevent the trust company from reaping a benefit from it, although the company did not in any way participate in the fraud.
    3. No person can claim an interest under a fraud committed by another. However innocent the party may be, if the original transaction is tainted with fraud, that taint runs through the derivative interest, and prevents any party claiming under it.
    Argued March 21, 1911.
    Appeal, No. 360, Jan. T., 1910, by Oliver D. Wood, et al., from decree of O. C. Phila. Co., Jan. T., 1910, No. 377, dismissing exceptions to adjudication in Estate of Elizabeth Ivins Stirk, deceased.
    Before Fell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Reversed.
    Exceptions to adjudication.
    At the audit it appeared that the residuary estate was claimed by Oliver D. Wood and William B. Wood, the brothers and only next of kin of the testatrix, upon the ground that the bequest of the residuary estate to The Land Title & Trust Company under the codicil to the will was invalid, because of the legal incapacity of The Land Title & Trust Company to take and also because this bequest of the residuary éstate was an illegal attempt to violate sec. 11 of the act of April 26, 1855, the testatrix having died four days after the execution of the will and codicil.
    The auditing judge, Anderson, J., decided in favor of The Land Title & Trust Company. Exceptions filed by Oliver D. Wood and William B. Wood were on October 18, 1910, argued before Judges Dallett, Lamorelle and Anderson. On December 3,1910, an opinion was filed by Lamorelle, J., dismissing the exceptions; and at the same time a dissenting opinion was filed by Dallett, J. On December 7, 1910, a formal decree was entered dismissing the exceptions and confirming the adjudication.
    The facts appear by the opinion of the Supreme Court.

      Error assigned was the decree of the court.

      Alfred R. Haig, with him Henry C. Thompson, Jr., William F. Harrity, Solomon F. Glenn and Edwin F. Glenn, for appellants.
    — To sustain the bequest of the residuary estate, to The Land Title & ■ Trust Company, under the codicil, is to violate sec. 11 of the Act of April 26, 1855, P. L. 328: Schultz’s App., 80 Pa. 396; Hodnett’s Est., 154 Pa. 485; Kessler’s Est., 221 Pa. 314; Price v. Maxwell, 28 Pa. 23; Jeanes’s Est., 228 Pa. 537; Fetterhoff’s Est., 228 Pa. 535; Paxson’s Est., 221 Pa. 98; Gray’s Est., 147 Pa. 67; Gregg’s Est., 213 Pa. 260.

      John G. Johnson, with him Maurice Bower Saul, for appellees.
    — There was no violation of the act: Flood v. Ryan, 220 Pa. 450; Schultz’s App., 80 Pa. 396; Hodnett’s Est., 154 Pa. 485; Jones v. Badley, L. R. 3 Ch. App. Cases, 362; Rowbotham v. Dunnett, L. R. 8 Ch. Div. 430.
    May 23, 1911:
   Opinion by

Mr. Justice Stewart,

The question we have to determine is, whether under the evidence submitted, a secret trust attaches to an alternative bequest, which by the terms of the will was to become effective in case the testatrix died within thirty days after the execution of her will. The appeal is by the brothers and next of kin of the testatrix from a decree of the orphans’ court of Philadelphia county adjudicating the account of the executors and trustees, and awarding the fund absolutely to the residuary legatee named in the will. The claim made on their behalf is that the bequest though in terms absolute, was made with a tacit understanding that in case the charitable bequests contained in the will failed by reason of death within thirty days from the date of the execution of the will, the alternative residuary legatee would appropriate the fund received to their payment. The case is an exceptional one on its facts. Fortunately these are not in dispute. The testatrix, Mrs. Elizabeth Ivans Stirk,^ was a married woman, wife of Dr. James C. Stirk, of Philadelphia. She had been twice married but was childless, and her nearest kin surviving are two brothers, these appellants. With her surviving husband she had an antenuptial contract limiting and defining his interest in her estate. She made her will in immediate contemplation of a very serious surgical operation upon herself which she apprehended might be attended with fatal results. The will was prepared by Mr. Simpler, assistant trust officer of The Land Title & Trust Company, a corporation appointed one of the executors, and made also the alternative residuary legatee under the will. Mr. Simpler’s assistance in the matter was invited in this way. A year or so before he-had aided Mrs. Stirk in the settlement of her share in the estate of her first husband. In the course of that business he had suggested to her the importance of herself making a will, and had endeavored, without success, to overcome her objections. So when the emergency of her illness arose, she sent for him. He visited her on the afternoon of Saturday, January 9, 1909. She then told him of her physical condition and her apprehension as to the result, and requested him to prepare a will for her to execute. She acquainted him fully and exactly with the disposition she desired to make of her estate, devoting it largely to charitable, educational and religious uses. From the memoranda taken at this interview he prepared the will and codicil thereto the following day (Sunday), and on Monday morning called upon Mrs. Stirk, when both will and codicil as he had prepared them, with the exception hereafter noted, were duly executed. The will proper as prepared by Mr. Simpler, was executed without any change whatever. In the thirteenth item it gave to St. Joseph’s Hospital in Philadelphia the sum of $5,000; in the fourteenth, to the Presbyterian Home for Aged Couples and Aged Men, located at Bala, $25,000; in the sixteenth, to the University of Pennsylvania, $100,000; in the fifteenth, to her husband, “in pursuance of the antenuptial contract” $100,000; in the eighteenth, her residuary estate to her executors in trust, to pay annuities for life as follows: $8,000 annually to her husband, Dr. James C. Stirk; $3,000 annually to her brother, Oliver D. Wood; $500 annually to her brother, William B. Wood; a like sum to Oscar Miller, and $260 annually to her friend, Mrs. William D. Summers. This further provision follows: “And as to the residue of the said net income, and upon the death of the said annuitants, as to the amount heretofore paid to them respectively, to pay over the same to the University of Pennsylvania for the general purposes of said University.

“And upon the further trust, upon the death of the last survivor of the said annuitants, in trust to pay over, transfer and deliver the whole of my residuary estate as it may then be constituted unto the University of Pennsylvania.”

The codicil as prepared by Mr. Simpler was as follows: “Whereas there may be a question as to the legality of the bequests to the University of Pennsylvania and to the charities named as beneficiaries in my said will in case of my death within thirty days after the date of said will, now in case I shall die within thirty days after this date, I hereby revoke the said bequests to St. Joseph’s Hospital of five thousand dollars, to the Presbyterian Home for Aged Couples and Aged Men located at Bala, of Twenty five thousand dollars, to the University of Pennsylvania of One hundred thousand dollars, and the residuary bequests to the said University of Pennsylvania, and in lieu thereof, I give, devise and bequeath the sum of One hundred and thirty thousand dollars to

“ And as to the rest, residue and remainder of my estate, and after the termination of the annuities as provided in my said will, I give and devise and bequeath the same to .”

The only change made in the codicil before execution was the insertion of the name, Dr. James C. Stirk, in the first blank appearing above, and the name The Land Title & Trust Company in the second.

This brings us to the material inquiry in the case; and that our recital of the facts in connection therewith may be entirely accurate we shall quote from the record the testimony of the several witnesses. Mr. Simpler, the scrivener, having testified that on writing up the will in accordance with the instructions Mrs. Stirk had given him on Saturday night, it occurred to him that in case the operation contemplated should prove fatal the charitable bequests would fall, and that he therefore prepared a skeleton of a codicil, and took that with the will; that the will was entirely satisfactory, and was executed, and that then the codicil was taken up; his further examination proceeded as follows: Q. “Had she, [testatrix] given you any instructions about the codicil prior to that? ” A. “She had not.” Q. “The codicil, then, was your suggestion?” A. “ Was my suggestion, to take care of the possible intestacy, because she had expressed herself to me as having provided for everybody in whom she had any interest, under the terms of the will, including the money to go as the residuary clause provided.” Q. “In preparing the codicil, you prepared it as a skeleton, with the names of the beneficiaries blank? ” A. “Exactly.” Q. “At the time you received your instructions as to the preparation of the will, was anything said as to the alternative bequests under the codicil?” A. “Nothing.” Q. “The codicil was not referred to?” A. “The codicil was not referred to, because as I say, the possible fatal termination of the operation did not occur to me until I sat in the quiet of my office on Sunday night and had the will prepared.” Q. “ When you went back with the skeleton of the codicil, what did you say to her in connection with that? ” A. “ I told her that in case of her death within thirty days, the law said that a gift to a charity was void, and that the law also said that a gift to any person in trust to pay to a charity was void; and that therefore it became necessary for her to consider to whom should go the amounts which she had given to charities, and the residuary amount which was to have gone to the university without any relation of trust being implied or expressed.” Q. “Was the codicil prepared and ready for execution before the will had been executed?” A. “The codicil was all prepared in typewriting, with, as I say, a skeleton. I have had the will brought up from the Register’s Office.” Q. “Had the blanks been filled in? ” A. “No, they were not filled in prior to the execution of the will.” Q. “After the will had been executed, what was done with the codicil?” A. “After the will was executed, I said, ‘Now, it is necessary to take up the question of the codicil, as to what, in case of your death within thirty days, you wish done with the charitable bequests of $130,000, and the ultimate residuary bequests after the annuities fall in;’ and at that time, the will having been executed, the witnesses to the will were present. I read over the codicil and came to the first blank, and I said ‘To whom do you wish the $130,000 to go, in case the will shall be null as to that? ’ ‘ Oh,’ she said, ‘give that to Jim.’ I said ‘You fill in Dr. Stirk’s name,’ which she did in her own handwriting.” Q. “Was Dr. Stirk present at that particular moment?” A. “He was not present at that time. And I also had her initial it. And then the question came as to the residue of the estate after the termination of the annuity, and I read over that clause and asked her to whom she wished that to go, and she said, ‘Give that to the Land Title Company.’ ” Q. “Had you made any suggestion to that effect? ” A. “I said ‘You write that in,’ and she asked if she had to write all that in, and I said I would write it if she initialed it; and that is what was done, and then the codicil was signed by her, and I asked her if she acknowledged it as a codicil to her will, and she did so in the presence of the witnesses and they signed and left.” Q. “Now, when the name of the Land Title Company was suggested as the residuary devisee and legatee, was there any conversation as to the character of that bequest, except that it was to be absolute?” A. “There was none.” Q. “Were there any instructions given?” A. “There were not.” Q. “Had you called her attention, or had you called to her mind any decision of the Supreme Court bearing on a case of that kind?” A. “I had not.” Q. “The gift was made, as you say, without any intimation from her as to the object of it and without any suggestion or direction as to the ultimate disposition of that property?” A. “Absolutely. ”

Mr. Simpler had brought with him two of his assistants in the trust company to attest the execution of the will. They were not introduced into the room where testatrix was until after the conversation between Mr. Simpler and the testatrix has occurred, and their testimony was confined to the act of execution. John F. Case, one of these, testifies that together they were called in to attest the will; that having subscribed as witnesses to the will proper they remained in the room while Mr. Simpler took up the matter of the codicil. This witness was then asked the question, “Now tell us what you heard, so far as you remember?” His answer was: “After the clause in the codicil where the bequest of $130,000 is revoked, Mrs. Stirk requested Dr. Stirk’s name to be inserted, after which she requested Mr. Simpler to run his pen through the words immediately following Dr. Stirk’s name, which he did, and Mrs. Stirk put her initials on the margin, and after that she suggested that the residuary estate be left to the Land Title & Trust Company.” Q. “What was the conversation between Mrs. Stirk and Mr. Simpler— what did each of them say — at the time in your presence in relation to the codicil?” A. “As I remember, there was not much conversation. I think Mr. Simpler spoke something to this effect — as to whom should this residuary estate be left, and she said, ‘the Land Title & Trust Company,’ and then he asked her to write the Land Title & Trust Company’s name in the codicil, to which she demurred, it being a long name, and Mr. Simpler said he would write the name in if she would put her initials on the margin.” Q. “Who wrote the name of Dr. Stirk in? ” A. “Mrs. Stirk.” Q. “Was there any suggestion made by Mr. Simpler leading up to the entering of these names in the codicil?” A. “None that I heard, no.”

The testimony of the other attesting witness, Mr. Glenn, was to the same effect. Dr. Stirk, the husband, testified that he was present when the name of the Land Title & Trust Company was inserted in the codicil. He was asked, Q. “Can you give us any conversation that took place at that particular time?” A. “The only conversation that I can recall is when Mr. Simpler said, ‘Now, there is a residue, what shall we do with that?’ and she says, ‘Oh, give that to the Land Title Company? ’ ” Q. “Just in that way?” A. “She remarked at the same time that she had made provisions for every one else that she cared anything about, and she would give that to them.” Q. “Did she give any direction as to how they should dispose of it?” A. “None whatever; just simply ordered it to be given to the Land Title Company.” Q. “Did you suggest anything to her?” A. “Absolutely not.” Q. “Did you raise any question or make any suggestion as to the propriety of giving this to a corporation for profit?” A. “I had no reason to.” Q. “Or a total stranger?” A. “Absolutely none.”

We have been careful to recite all the testimony bearing upon the immediate question with which we have to deal. These additional facts, however, appear in the case, which are to be noticed. The estate which was disposed of under this will the testatrix had derived in most part, if not wholly, from her first husband; she was not a stockholder in the trust company, and so far as appears was not even a depositor; and again, so far as appears, she was unacquainted with anyone interested in it except Mr. Simpler; and still again, the Land Title & Trust Company is neither a religious nor charitable, nor educational institution, but one exclusively for profit. The first question that naturally arises is, why should the testatrix, whose governing desire and evident purpose, as declared in- her will, was to devote such a large part of her estate to charitable and educational uses, choose as an alternative recipient of her bounty, in case her original disposition failed, by operation of law, a corporation which needed no assistance, whose usefulness as a public convenience could in no way be promoted by private benefactions, and which was incapable at law of engaging in charitable, educational or religious enterprises, rather than kindred for whom she had affectionate regard, as evidenced by her will? Were this an inquiry as to her testamentary capacity, the circumstance stated would properly call for consideration. It is quite as relevant here though in a different connection, not as a challenge of the testatrix’s jus disponendi, but because it is a testamentary disposition not only unusual, but so contradictory to the main purpose expressed in the will proper, and so inexplicable by the ordinary rules which regulate and control human conduct and feeling, that, if the entire sanity of the testatrix be conceded, as it must be, it suggests at least a suspicion that the words of the will leave something of the intention of the testatrix unexpressed. The will, aside from the codicil, disposed of her entire estate, and expressed her governing desire and purpose. The codicil was prepared by the scrivener without consultation with the testatrix, to meet a legal contingency which, after preparing the will, had occurred to him, but not to the testatrix, as possible. It is no strained inference from the testimony of Mr. Simpler that the testatrix knew nothing whatever of the requirements of law in the matter of charitable bequests until he submitted to her the codicil for execution. Assuming, as we have a right to do, that she was a person wholly uninformed in this respect, the information she received from him, while it might have been enlightening to one who had some previous knowledge of the law of mortmain, can hardly be said to have been so instructive as to impart to this testatrix an intelligent understanding of legal requirements. What he told her, and all he told her, was that in case of death within thirty days the law said that a gift to a charity was void, and that the law also said that a gift to any person in trust to pay a charity was void; and that therefore it became necessary for her to consider to whom should go the amounts which she had given to charities, and the residuary amount which was to have gone to the university without any relation of trust being implied or expressed. While it cannot be said that this was a misdirection in terms, we yet incline strongly to the view that it was so in effect, and produced a testamentary act the legal effect of which was wholly misapprehended by the testatrix. She certainly understood from what was told her that in the event of her death within thirty days following, the charities she had provided for in her will would fail, as the will then stood; but we think quite as certainly she understood from what followed that the codicil provision was introduced, not as a substitutionary gift absolute, but as a means of effectuating in any event her intention as expressed in the will proper. There is in the instruction given not a word of warning or caution that failure of the charities in the event of death within the statutory period, would be incurable; that the takers by the alternative gift proposed would take absolutely in their own right, with power to make whatever use of the property they chose, to give it to the charities she sought to promote or withhold according to their own pleasure. The instruction, as one unskilled would most likely understand it, related to matter of form for the accomplishment not of other but the same ends as those she contemplated in the original will, only in another way. Had Mr. Simpler there stated to her that under the proposed alternative gift, if she did not survive, the Land Title & Trust Company would have the right to take and receive for its own her entire residuary estate amounting to upwards of $340,000, and add it to the company’s surplus for the enrichment of its stockholders, none of whom she knew so far as appeared, can anyone doubt that she would at once have disclaimed any such intention or purpose? The promptitude with which she acted in designating the alternative beneficiary in answer to the scrivener’s inquiry, and her entire indifference and want of consideration as expressed in her reply, “Oh, give that to the Land Title Trust Company” strongly indicated an understanding on her part that she was selecting the company, not as a beneficiary, but as a medium through which the charities she had indicated would receive her bounty.

But her understanding and intention while important are not decisive of the question. Mere expectation on her part that the trust company, in case the gift to it became effective, would dispose of the property to and among the charities she had designated, would not convert what by its terms is an absolute gift into a trust. The assent of the party to whom the gift is made must appear as well. “If an absolute estate is devised, but upon a secret trust assented to by the devisee, either expressly or impliedly, by knowledge and silence before the death of the testator, a court of equity will fasten a trust on him on the grounds of fraud and consequently the statute of mortmain will avoid the devise if the trust is in favor of a charity. If the devisee has no part in the devise and no knowledge of it until after the death of the testator, theré is no ground upon which equity can fasten such a trust on him even though, after it comes to his knowledge, he should express an intention of conforming to the wishes of the testator:” Schultz’s App., 80 Pa. 396.

It follows that however much this testatrix misapprehended the legal effect of her testamentary act, except as her misapprehension was designedly encouraged by another, it is too late to correct the mistake. We turn now to the acts and conduct of the scrivener in connection with the transaction. If it be found that he knew or had reason to believe, that the testatrix was executing the codicil he prepared in the belief that the gift to the trust company, though absolute on its face, was but a method adopted to secure in any event her gift to the charities designated in the will, and kept silence, the law will charge him with assent, and acquiescence and will imply a trust arising from the gift absolute. The transaction would then take on the aspect of constructive fraud even though all the gain and advantage resulting therefrom were to accrue to another. So we are not'concerned in our inquiry with the Land Title & Trust Company. There is not the slightest evidence of its participation, nor is it necessary that there should be in order to fasten upon it a trust. That company here appears as a claimant to the fund in its own right; but it stands just where Mr. Simpler would have stood had the gift been to him. “No person can claim an interest under a fraud committed by another. However innocent the party may be, if the original transaction is tainted with fraud, that taint runs through the derivative interest, and prevents any party claiming under it.” This was said by Lord Justice Turner in a case closely resembling this, Russell v. Jackson, 10 Hare 204. We repeat, the vital inquiry in the case is, did Mr. Simpler know or have reason to believe that this testatrix understood from what he had told her that the gift to the trust company was simply to meet the requirements of the law, and carry the bequests to the charities designated in the will? We have in another connection pointed out those features of the case which made it exceptional. The one above all others calculated to surprise, is the fact of the gift of upwards of $340,000 to a trust company whose business is that of making money for the profit of its stockholders, too abundantly established to require aid, and in which the testatrix was absolutely without interest, and towards which she stood as an entire stranger. When the testatrix in reply to the question, “To whom do you wish that to go? ” said, 'Oh, give that to the Land Title & Trust Company,” we think we speak for the average or ordinary scrivener when we say, that if he knew the character of the beneficiary proposed, he would have been startled by the reply, and his mind would at once have opened to a suspicion that the testamentary act had been too long delayed and that mental disturbance had intervened. Except as a purpose to use the trust company simply as a trustee was known, the ordinary scrivener would at least have repeated his inquiry to make certain that he had correctly understood what had been said. If so much would naturally have been expected of the ordinary scrivener, how much more would reasonably be expected of one so experienced and qualified as Mr. Simpler, who tells us himself that as assistant trust officer he had long been accustomed to write wills; especially in view of the fact that the gift was to the company with which he was closely connected? Certainly to such an one should have come a quicker and surer apprehension of the actual situation, disclosing more than enough to excite suspicion or misapprehension, either on his own part or on the part of the testatrix; and from such an one we would naturally expect further inquiry and instruction before the. testamentary act was committed. Here neither inquiry nor instruction followed, but the writing in the blank space the name of the Land Title & Trust Company followed without question immediately upon the reply. Mr. Simpler is careful to say that he had no communication with the testatrix as to the character of the bequest to the trust company, except that he told her it was to be absolute; that the gift was made without any intimation as to her object in making it, and without suggestions of directions as to the ultimate disposition of it. It is to be noted that he is no less careful to avoid saying what his own understanding of the purpose of the testatrix in making the bequest absolute was. Although the confidential adviser of the testatrix, and fully competent, he had not given her advice and instruction, with reference to the necessity of the codicil which he had prepared, and the meaning of its provisions, sufficient to prevent a probable or even possible misapprehension on her part. This much we think is clear, and we fail to see why what must be so manifest to others, was not apparent to himself. We can only interpret his failure to proceed further with instructions to the testatrix, with words of caution and warning, and his silence when he should have spoken, as studied effort on his part to' defeat the true spirit of the law by avoiding all utterance which might thwart his purpose to create a trust, and thereby accomplish by indirection that which the law would otherwise disappoint.

Upon a review of all the testimony, and having in mind the situation and surroundings of the testatrix, the character of the gift to the trust company, which if absolute, in the language of the learned auditing judge, is “incomprehensible and almost incredible,” we are constrained to the conclusion that it was the understanding of both the testatrix and Mr. Simpler, notwithstanding that neither communicated in words such understanding to the other, that the bequest to the Land Title & Trust Company, though by its terms absolute, was with a purpose to secure to the charities designated in the will the bequests therein given them, in any and every event; and that nothing more was intended than that the trust company should be a medium of transmission. It follows that it is as though the bequests were given directly to the charities, and the testatrix having died within thirty days from the execution of the will, the bequest falls and so much of the estate is to be distributed under the intestate laws of the state.

We are quite aware that the case upon its facts is without exact parallel; nevertheless, its main and essential features bring it within the operation of established and familiar principles, and these we. have applied. With the statute out of the way we would hold without question that the absolute bequest to the trust company was impressed with a trust for the charities. For the reasons given the decree in this case awarding the fund to the Land Title & Trust Company is reversed, and the record is remitted for distribution of that fund in accordance with the views here expressed.


author: Mr. Justice Mestrezat,

text:
    Russell v. Henry C. Patterson Company.

      Corporations — Officers—Compensation—Salaries—Ratification.
    1. A majority of the stockholders of a corporation, who are also the directors, may at a regular stockholders’ meeting ratify and confirm against the vote and protest of a minority stockholder a resolution of a majority of the board of directors increasing the salaries of two of such directors as officers of the company where such salaries are found by the court to be fair and reasonable compensation for the services rendered.
    2. In such a case the act of the directors in increasing the salary was not void but only voidable, and may be ratified at a stockholders’ meeting.
    3. When directors vote at a board meeting they act as agents of the corporation occupying a fiduciary relation, but when the same persons vote as stockholders at a stockholders’ meeting, they hold no trust relation to the company which would deprive them of the right to vote as their interests dictate. They may therefore in their independent position as stockholders ratify their own voidable acts as directors, if such ratification involves no fraud.
    Argued March 23,1911.
    Appeal, No. 48, Jan. T., 1911, by Edwin H. Coane, C. Conde Freas and Bertram L. Kimball, from decree of C. P. No. 1, Phila. Co., Dec. T., 1909, No. 2,713, on bill in equity in case of Henry A. Russell v. Henry C. Patterson Company and Edwin H. Coane et al.
    Before Bkown, Mesteezat, Pottek, Elkin and Stewakt, JJ.
    Reversed.
    Bill in equity for an injunction. Before Magill, J.
    The facts are stated in .the opinion of the Supreme Court.
    The court entered the following decree: ,,
    That the said Henry C. Patterson Company and its officers and directors and the said Edwin H. Coane, C. Conde Freas and Bertram L. Kimball, defendants, are hereby perpetually restrained from carrying into effect the motion of February 9, 1909, set forth in the plaintiff’s bill filed in this case and from paying to the said Edwin H. Coane and C. Conde Freas the salaries mentioned in said motion or any part .thereof in excess of $1,200 per annum which they the said Edwin H. Coane and C. Conde Freas were receiving at the time of said motion, to wit, February 9, 1909.
    That the said Edwin H. Coane and C. Conde Freas are hereby ordered and directed to return into the treasury of the said Henry C. Patterson Company such sums as they may have received as salaries in excess of the rate of $1,200 per annum on or subsequent to February 1,1909.
    That the defendants, Edwin H. Coane, C. Conde Freas and Bertram L. Kimball, shall pay the cost of this suit.

      Error assigned among others was the decree of the court.

      Horace Haverstick and Frank P. Pritchard, for appellants.
    — The action of the directors was only voidable and capable of being ratified: Schaffhauser v. Brewing Co., 218 Pa. 298; Bagaley v. Iron Co., 146 Pa. 478; U. S. Steel Corporation v. Hodge, 64 N. J. Eq. 807 (54 Atl. Repr. 1); Camden Land Co. v. Lewis, 101 Maine, 78 (63 Atl. Repr. 523).
    The error of the learned court below consisted in overlooking and disregarding the vital distinction between the votes of these men in the board of directors acting as directors and fiduciaries, and the votes of the same men as stockholders in the stockholders’ meeting, where each acts and votes as his own interests and inclinations dictate, regardless of the others, even if his vote favors himself: U. S. Steel Corporation v. Hodge, 64 N. J. Eq. 807 (54 Atl. Repr. 1); Nye v. Storer, 168 Mass. 53 (46 N. E. Repr. 402); Green v. Felton, 84 N. E. Repr. 166; Twin-Lick Oil Co. v. Marbury, 91 U. S. 587; Pneumatic Gas Co. v. Berry, 113 U. S. 322 (5 Sup. Ct. Repr. 525).

      G. Von Phul Jones, for appellee.
    — The resolution was not made valid by the votes of the officers at the stockholders’ meeting: Beatty v. North-West Transportation Co., 12 Canada Supreme Ct. 598.
    The stockholders had no power to ratify: Schaffhauser v. Brewing Co., 218 Pa. 298; Bergdoll v. Bergdoll Brewing Co., 10 Pa. Dist. Rep. 173.
    The resolution also violates the rule that a corporation cannot pass a resolution to make salaries effective as of a past date. It was passed on February 9, 1909, and read that it was to take effect as of February 1, 1909: Loan Assn. v. Stonemetz, 29 Pa. 534.
    May 23, 1911:
   Opinion by

Mr. Justice Mestrezat,

The Henry C. Patterson Company was incorporated January 20, 1904, under the laws of Pennsylvania, and is engaged in the lumber business. It has a capital stock of $50,000, divided into 500 shares of the par value of $100 each. From September 1, 1908, to the date of the hearing by the court below, the stock was held as follows: Edwin PI. Coane, 348 shares; C. Conde Freas, one share; Bertram L. Kimball, one share; and Henry A. Russell, 150 shares. The by-laws fixed the number of directors at four and the board is composed of the plaintiff and the three defendants. At the annual meeting of the stockholders, held February 9, 1909, Coane, Freas, Kimball and Russell were re-elected directors for the ensuing year, and at a meeting of the board of directors held on the same day Coane was re-elected president, Kimball vice president, and Freas, secretary and treasurer. Article 3, sec. 4, of the by-laws of the corporation provides as follows: “The board of directors shall have charge of the general conduct of the business affairs of the company, and establish such rules and regulations, and from time to time alter or amend the same, as in their opinion are expedient to the welfare of the company. They shall, from time to time, fix the compensation of the officers.” At the time of the election of the officers in February, 1909, the salary of the president and of the secretary and treasurer was $1,200 each per annum, said amounts having been fixed at a meeting of the board of directors in July, 1908, when they were reduced from $1,500. At a meeting of the board on February 9, 1909, after the election of the officers, a motion was made to fix the salary of the president and of the secretary and treasurer at $2,000 per year for each, dating from February 1, 1909. Coane, Freas, and Kim-ball voted for the motion and Russell against it. These salaries have been paid to the officials in accordance with the resolution. From the organization of the company until July, 1908, Russell acted as vice president of the company and was actively engaged in the conduct of the business. In the early part of his employment, he received a salary, as vice president, of $2,500 per year; Freas, as secretary and treasurer, and Charles G. Miller, Russell’s brother-in-law who was acting as general manager, each received the same, and Coane as president in lieu of a fixed salary the profit on one branch of the company’s business amounting to about $1,500 per year, the total salaries of the four persons being $9,000 a year. Owing to certain losses and changes in the location of the company’s business the salaries were reduced to $1,500 per year and thereafter to $1,200 per year. Then Russell notified the officers of the company that he would no longer continue to render services to the company and Miller withdrew from the company. Coane, as president, thereafter devoted much more of his time to the business of the company and at the time of the hearing in the case was devoting practically all of his time to its general business. Freas at all times devoted the whole of his time and attention to the company’s business. The work of the company which had formerly been done by the four stockholders and Miller is now done by Coane, Freas, and a clerk whose salary is $1,300 per year.

At the annual meeting of the stockholders of the company, held February 8, 1910, which was their first meeting held after the resolution of the board of directors adopted February 9, 1909, increasing the salaries, a resolution was passed ratifying and confirming the action of the board of directors fixing the salaries of the president and of the secretary and treasurer each at $2,000 per year. Coane, Kimball, and Freas voted for the resolution and Russell against it: .. [«n»

On January 10, 1909, Russell filed this bill to restrain the officers of the company from further paying the salaries, and to compel Coane and Freas to return into the treasury of the company the excess of salaries above $1,200 per annum. The bill averred, inter alia, that the salaries were exorbitant, unreasonable and unfair, and that the increase was illegal because it could not have been made without the votes of Coane and Freas, the incumbents of the offices. The learned judge held that the resolution of the board of directors increasing the salaries was void, and that the resolution adopted by the stockholders ratifying and affirming the resolution of the board was also void and of no effect, and entered a decree restraining the officers and directors of the company from carrying into effect the motion of February 9, 1909, increasing the salaries of Coane and Freas, and directing them to return to the treasury of the company such sums as they had received as salaries in excess of $1,200 per year. The defendants, Coane, Freas, and Kimball have appealed.

The defendants requested the court to find that the “increase of salaries was reasonable and a just compensation for the services rendered.” The court declined to affirm the point in the form in which it was submitted. The learned judge, however, in answering the point said: “The amount of the salaries of Coane and Freas as increased to $2,000 per annum each is probably not more than reasonable compensation for the services rendered, particularly in the case of Coane who appears to have devoted much more of his time to the work of the company after the withdrawal of the plaintiff from an active part in the management of its affairs, and it probably would have cost the company quite as much to employ other persons to perform that part of the labor now done by Coane and Freas, which does not strictly pertain to their duties as officers.” He then gives as a reason for not unqualifiedly affirming the point that as stockholders Coane and Freas were interested in making their stock more valuable; and that if they did not desire to perform the manual labor then performed by them they, as officers and directors, could employ others to do the work, and that the plaintiff could not and probably would not complain. This reason for not affirming the point after having found the facts above stated we do not regard as tenable. The learned judge was simply requested to find whether the compensation voted by the directors as salaries was reasonable and just, and not whether the directors should have employed others to perform the services. The directors had a right to serve the company in the capacity of officers or employees and to receive compensation for such services if legally employed by the company. The finding of the learned judge required him to affirm the point, and it must be so regarded.

The learned court below held that the question in controversy in this case was settled by our decision in Schaffhauser v. Brewing Co., 218 Pa. 298. We there held as stated in the syllabus that “the president of a corporation cannot, against the protest of a minority of the board of directors, and as against stockholders who choose to challenge the action, sustain a claim for an increase of salary, the right to which, if it exists, is secured by his own vote as a member of the board which allows it.” In his ruling, the learned judge failed to distinguish the facts of the case cited from those of the present case. The question involved in the Schaffhauser case was whether the directors may bind the corporation or a minority stockholder by voting a salary or compensation to one of their number who either is or is not an officer of the board; in the present case, the question is whether a majority of the stockholders, who are also the directors, may at a regular stockholders’ meeting ratify and confirm against the vote and protest of a minority stockholder a resolution of a majority of the board of directors increasing the salaries of two of such directors as officers of the company where such salaries are found by the court to be fair and reasonable compensation for the services rendered. In the Schaffhauser case the president of the corporation, who was a director, claimed the right to recover the compensation solely upon the resolution of a majority of the board of directors increasing his salary; in the present case, the right to the compensation rests upon the action of a majority of the directors ratified by a majority in interest of the stockholders in making a reasonable increase of salaries of two of the directors who as such and as stockholders voted for the increase.

The single question for consideration here, therefore, is whether under the circumstances of the case the ratification of the action of the majority of the directors by a majority in interest of the stockholders bound the corporation as against a dissenting stockholder to pay the salaries of the president and of the secretary and treasurer of the company. The answer to the proposition depends upon (a) whether the action of the directors in increasing the salary of the two members of the board was void or voidable, and (b) whether the two directors whose salaries were increased and whose votes were necessary to pass the resolution increasing the salaries could vote at a stockholders’ meeting held to ratify the action of the directors.

The salaries of $2,000 given each of the officers were not only compensation for services rendered as executive officers but also to compensate for such services as would be rendered by clerks 'and other employees of the corporation. As suggested above, the effect of the learned judge’s findings is that the salaries were not excessive or unreasonable but, on the contrary, not more than reasonable compensation for the services rendered. These facts, which appear by the record, eliminate any actual or intentional fraud on the part of the directors in voting compensation to the two officers. There is nothing in the case which would warrant the finding that there was any actual fraud on the part of the directors in increasing the compensation to $2,000; on the contrary, the evidence was sufficient to warrant a finding that a salary of $2,000 per annum to each of the two officers did not exceed just compensation to them for the services rendered. The voting of the salaries by the directors, however, constituted a technical or constructive fraud and for that reason payment of the salaries could not be enforced against the company in the absence of its authorization by the charter, a by-law, or some proper confirmatory act of the company.

We do not think the act of the directors in making an increase in the salaries was void but voidable. The directors of a corporation are its agents and occupy a fiduciary relation to it. They are governed by the rules applicable to such relationship. They are not technically trustees, yet they occupy a fiduciary relation towards the corporation which prevents them from dealing with themselves to the detriment of its interests. A director cannot contract with a corporation when its interests conflict with his private interests. His action in such cases, however, may be accepted or rejected at the option of the corporation. If he has contracted with himself the corporation may deem it expedient and to its interest to approve and accept his action. This is frequently done and this the corporation has the authority to do. On the other hand, the corporation clearly has a right to repudiate his act when for any reason it desires to do so.. It follows, therefore, that the act is voidable at the election of the corporation: Ashhurst’s Appeal, 60 Pa. 290; Graves v. Mono Lake Hydraulic Mining Co., 81 Cal. 303; Stewart v. Lehigh Valley R. R. Co., 38 N. J. Law, 505; U. S. Steel Corporation v. Hodge, 64 N. J. Eq. 807; Barr v. Railroad Co., 125 N, Y. 263; Hedges v. Paquett, 3 Ore. 77; Nye v. Storer, 168 Mass. 53; 2 Thomp. on Corp. (2d ed.), sec. 2043; 2 Cook on Corp., secs. 649, 657.

The well-settled general rule is that any act of a board of directors may be ratified by the stockholders which they could originally have authorized. This proposition seems to be sound in principle and supported by the authorities. Of course, this assumes that the act is not fraudulent or detrimental to the interest of the corporation. The stockholders could not bind the corporation by ratifying a contract made by the directors with the company which would fraudulently dispose of or waste the assets of the corporation. But where the contract is reasonable and fair, and a consideration has been received by the corporation, the stockholders may ratify it and thus bind the corporation: U. S. Steel Corporation v. Hodge, 64 N. J. Eq. 807, 60 L. R. A. 742; Continental Ins. Co. v. N. Y., etc. R. R. Co., 187 N. Y. 225; In Re George Newman & Co., L. R. (1895) 1 Ch. Div. 674; 2 Thomp. on Corp. (2d ed.), sec. 2048. In the section cited, Judge Thompson says: “It follows from the fact that the stockholders are, in a substantial sense, the corporation, that many acts which the directors or their executive officers may do outside the scope of their powers may become ratified and validated by the acquiescence of the body of shareholders; and, in general, the body of shareholders can ratify and confirm any act, done by the directors or other officers of the corporation, without a precedent authorization, which the shareholders could have authorized originally, unless the acts offend against the public or involve the rights of creditors. In other words, they may ratify any act so done unless the corporation is, by its charter or governing statute, or by the rules of the common law having reference to public policy, precluded from doing it in the first instance.”

We are of opinion that the resolution of the stockholders ratifying the action of the directors in increasing the salaries was not invalid because it was done by the votes of the same individuals by whose votes the resolution of the board of directors was passed and two of whom were the recipients of the salaries. At the meeting of the board, the voting was done by the directors as agents of the corporation, occupying a fiduciary relation to the corporation which prevented them contracting with their principal or voting themselves compensation for their services. When these directors voted as stockholders, in a stockholders’ meeting, they held no trust relation to the company which would deprive them of the right to vote as their interests dictated. As shareholders they, like other owners of the stock, had a voting capacity to the extent of the number of shares they held in the corporation. The right to vote their shares was a privilege of which they could not be deprived. While the maj ority stockholders may not use their voting power to defraud the minority stockholders, yet they have the right to protect their own interests in the stock by voting as they deem best in thestockholders’meeting. This might, as it did in the case in hand, result in sustaining them in obtaining a salary from the corporation. But their action cannot be condemned for that reason as it must be assumed that they believed that in so voting it was to the advantage and interest of the corporation. They owed the duty of good faith to the other stockholders in the management of the affairs of the corporation, and the other stockholders owed a like duty to them. Each stockholder had a right to vote in the shareholders’ meeting as he thought best to protect his own individual interest. Such interest would naturally and necessarily influence him in voting, but it would not deprive him of the right to vote on the ratification of the action of the directors. To hold otherwise, would be to permit a minority stockholder to control the majority stockholders and their property. This cannot be done. The majority stockholders may not as against the corporation and a minority stockholder dissipate or waste its funds or fraudulently dispose of them in any way, either by ratifying the action of the board of directors in voting themselves illlegal salaries or by any other act. But where the action of the board of directors is not fraudulent or unfair to the extent of amounting to fraud and the action of the directors may be ratified by the shareholders, the well-settled general rule is that the stock of the director who is benefited is to be counted, even though the vote would have failed had his stock not been voted: 2 Cook on Corp., sec. 662; Booth v. Land, etc., Co., 68 N. J. Eq. 536; Bjorngaard v. Goodhue County Bank, 49 Minn. 483; United States Rolling Stock Co. v. Railroad Co., 34 Ohio, 450, 32 Am. Rep. 380; Foss v. Harbottle, 2 Hare 461; Beatty v. Northwest Transportation Co., 5 Can. L. T. 277; Middleton v. Arastraville Min. Co., 146 Cal. 219; Blinn v. Riggs, 110 Ill. App. 37; U. S. Steel Corporation v. Hodge, 64 N. J. Eq. 807,60 L. R. A. 742.

We have disposed of the important and controlling question in the case. We do not deem it necessary to determine the other question suggested by the appellee that the resolution adopted at the stockholders’ meeting is invalid because it makes salaries effective as of a past date. It is not exactly clear whether the appellants received any salary for the few days prior to the date of the resolution of the board of directors increasing their salary, but if they did it may be regarded as disposed of under the maxim de minimis. The court below did not discuss the question, neither has appellant’s counsel.

For the reasons stated, the decree of the court below is reversed and the bill is dismissed at the cost of the appellee.