author: Mr. Justice Brown,

text:
    Commonwealth ex rel. v. Warren.

      Public officers — Dairy and food commissioner — Statutes—Constitutional law — Quo warranto — Act of March 13, 1895, P. L. 17.
    As the Act of March 13, 1895, P. L. 17, providing for the establishment of á department of agriculture is constitutional, and as the appointment of a dairy and food commissioner under the act is a valid appointment, the incumbent of the office of dairy and food commissioner cannot be ousted from his office in quo warranto proceedings, merely because subsequent acts of assembly have conferred upon him illegal and unconstitutional powers.
    Where the courts have determined that a public officer is holding a lawful office, they will leave the question of his right to exercise alleged forbidden powers to be raised in some proceeding other than quo warranto, in which specific acts said to be performed by him under statutory powers prohibited by the constitution, may be set forth and inquired into, and restrained, if unlawful.
    Argued Oct. 9, 1906.
    Petition for quo warranto. Miscellaneous Docket, No. 2, page 278.
    Before Mitchell, O. J., Pell, Brown, Mbstrezat, Potter, Elkin and Stewart, JJ.
    The petition was as follows :
    “ And now, to wit, May 1,1906, comes Hampton L. Oarson, the attorney general of the commonwealth of Pennsylvania, and files this suggestion and gives the court to understand and be informed :
    “ 1. That on the dates named the legislature of the state of Pennsylvania enacted the following statutes :
    “ A. The Act of May 26, 1893, P. 1. 152, entitled ‘ An act to enlarge the powers of the state board of agriculture, to authorize the said board to enforce the provisions of the act entitled ' An act for the protection of the public health, and to prevent adulteration of dairy products and fraud in the sale thereof,’ approved May 21, a. d. 1885, and of other acts in relation to dairy products; to authorize the appointment of an agent of the said board, who shall be known as the dairy and food commissioner, and to define his duties and fix his compensation, being supplementary to an act entitled ‘ An act to establish a state board of agriculture,’ approved May 8, a. d. 1876.’
    “ B. The Act of March 13, 1895, P. L. 17, entitled ' An act to establish á department of agriculture and to define its duties and provide for its proper administration.’
    “ C. The Act of June 26, 1895, P. L. 317, entitled ' An act to provide against the adulteration of food and providing for the enforcement thereof.’
    “ D. The Act of June 26, 1895, P. L. 318, entitled ' An act to amend an act entitled ' An act for the protection of the public health and to prevent the adulteration of dairy products and fraud in the sale thereof,’ approved May 21, 1885, providing for the payment of one-half of the amount of fines recovered into the county treasury of the proper county and the other half "to the dairy and food commissioner for the use of the department of agriculture for the enforcement of the act.’
    “ E. The Act of July 5, 1895, P. L. 605, entitled ‘ An act to enlarge the duties of the state food commissioner, authorizing him to enforce all laws against the adulterations or impurities in vinegar, jellies, cider, evaporated apples and all apple products and the unlawful labeling in the state of Pennsylvania.’
    “ E. The Act of Juno 18, 1897, P. L. 168, entitled ‘ An act providing for the regulation of the manufacture and sale of distilled and fermented vinegar, prescribing their standard, to prevent the adulteration of the same, providing for the enforcement thereof, and punishment for the violation of the same.’
    “ G. The Act of June 23, 1897, P. L. 202, entitled ' An act to prevent fraud and deception in the manufacture and sale of cheese, and defining what shall constitute the various grades of cheese, providing rules and regulations for marking and branding the same, providing for the enforcement of this act, prescribing penalties for its violation.’
    “ H. The Act of May 2, 1901, P. L. 123, entitled ‘ An act relative to adulteration of natural fruit juice and providing penalties for violations thereof.’
    “ I. The act of May 29, 1901, P. L. 327, entitled ‘ An act to prohibit the manufacture and sale of oleomargarine, butterine and other similar products, when colored in imitation of yellow butter; to provide for license fees to be paid by manufacturers, wholesale and retail dealers, and by proprietors of hotels, restaurants, dining rooms and boarding houses; for the manufacture or sale of oleomargarine, butterino or other similar products, not colored in imitation of yellow butter; and to regulate the manufacture and sale of oleomargarine, butterine or other similar products, not colored in imitation of yellow butter, and prevent and punish fraud and deception in such manufacture and sale as an imitation butter; and to prescribe penalties and punishment for violations of this act, and the means and the method of procedure for its enforcement, and regulate certain matters of evidence in such procedure.’
    " J. The Act of July 10, 1901, P. L. 643, entitled ' An act defining boiled or process butter; designating the name by which it may be known ; providing for the licensing of manufacturers and dealers therein, and regulating the sale and labeling of the same so as to prevent fraud and deception in its sale; providing punishment for violations of this act, the methods of procedure for its enforcement, and certain matters of evidence in such procedure.’
    “ K. The Act of March 28, 1905, P. L. 64, entitled ' To prohibit the selling, shipping, consigning, offering for sale, exposing for sale, or having in possession with intent to sell, as fresh, any meat, poultry, game, fish or shell fish which contains any substance or article possessing a preservative or coloring character or action ; making the same a misdemeanor ; and to prescribe penalties and punishment for violations, and the means and the methods of procedure for the enforcement thereof.’
    " 2. That the said act of March 13, 1895, created an official department of the commonwealth of Pennsylvania to be known as the department of agriculture, and established as subordinate thereto an officer to be known as the dairy and food commissioner, which said officer was to be appointed by the governor for the term of four years. Covering the duties of the said dairy and food commissioner, the said act, sec. 4, provides that the said official shall ' perform the duties prescribed by an Act approved May 26, 1893.’ The latter act, sec. 2, provides as follows: ' The said agent (dairy and food commissioner) shall be charged .... with the execution and enforcement of all laws now enacted or hereafter to be enacted in relation to the adulteration or imitation of dairy products.’
    " 3. That, excepting the said acts of May 26, 1893, and of March 13, 1895, all of the acts above named prohibit the adulteration of food and provide that the enforcement of their various provisions shall be undertaken by the said dairy and food commissioner.
    “4. That the constitution of the state of Pennsylvania, adopted November 3, 1873, contained, sec. 27, art. 3, the following clause: ‘ No state office shall be continued or created for the inspection or measuring of any merchandise, manufacture or commodity; but any county or municipality may appoint such officers when authorized by law.’ The said constitution, by virtue of sec. 1 of ' Schedule,’ became operative on January 1, 1871, and still is operative throughout the commonwealth of Pennsylvania.

      “ 5. That the defendant, B. Harry Warren, was, on April 1 1903, appointed by Honorable Samuel W. Pennypacker, Governor of the Commonwealth of Pennsylvania, to fill the said office of dairy and food Commissioner. That since the date of his appointment the said defendant, under color of the acts of assembly above named, has used and exercised, and still doth use and exercise, the said office of dairy and food commissioner, without warrant or lawful authority therefor ; and that, under color of the said statutes and of the said office, the said defendant has usurped and exercised, and still doth usurp and exercise, the power of a state- officer for the inspection of merchandise, without warrant or lawful authority therefor, to the great damage and prejudice of the commonwealth and its fundamental laws, in the manner following, to wit: The said dairy and food commissioner, between April 1, 1903, and the present time, has appointed divers agents, chemists and attorneys, by name unknown to your petitioner. That the said dairy and food commissioner and the said agents, under the authority and direction of the said dairy and food commissioner, have visited various retail grocery stores, wholesale grocery stores and manufacturing establishments throughout the state, exercising the right of full access, egress and ingress to such stores and establishments and also exercising the power and authority to open packages, cans or vessels, and the power to take from said packages, cans or vessels samples of the contents thereof ; that the said dairy and food commissioner and his said agents, acting under Ms direction and authority, have procured at said stores and establishments samples of food products, the object of the taking of said samples being the examination and inspection thereof in order to determine whether criminal prosecutions should be instituted against any person by the dairy and food commissioner for the violation of the various pure food statutes of the state of Pennsylvania. That the said samples have been by the said dairy and food commissioner, and by his said agents acting under authority and direction of the said commissioner, placed in the hands of the chemists appointed by the said commissioner; that the said chemists, under direction and authority of the said commissioner, have analyzed and inspected said samples of food products, and following same have rendered to said commissioner reports of the results of said analysis and inspection, with the opinion and advice of said chemists thereon as to whether criminal action, based upon the composition of said samples, as disclosed and revealed by said analysis and inspection, should be instituted against any person. That the said commissioner, acting upon the advice and opinions contained in said chemists’ reports, has in many cases authorized and instructed his said attorneys to institute criminal proceedings, under the various statutes previously referred to, against retail grocers, wholesale grocers and manufacturers; which said criminal proceedings have been instituted by said attorneys, and said defendants mulcted in fines and costs. That in addition to the above, the said B. Harry Warren, dairy and food commissioner; Oliver D. Schoek, assistant dairy and food commissioner ; Robert M. Simmers, special agent of the dairy and food commissioner; W. A. Hutchinson, agent, together with certain other agents and representatives of the dairy, and food department unknown to your petitioner, have visited retail grocery stores, wholesale grocery stores and manufacturing establishments, after purchasing samples of various food products, have themselves examined and chemically inspected said samples of food, notably butter and milk, using for the examination and inspection of butter a chemical test known as the “Spoon test,” and using for the examination and inspection of milk a chemical test known as the “ Tube test; ” that if the examinations and inspections thus made by said dairy and food commissioner and his subordinates indicated the adulteration of the said article, samples thereof were taken and placed with the aforesaid chemists for further analysis and inspection as aforesaid.
    “ Whereupon the said Hampton L. Carson, attorney-general, makes this his suggestion and complaint against the said B. Harry Warren, that a writ of quo warranto may be granted by your Honorable Court and be directed to issue against the said B. Harry Warren, to show by what authority he, the said B. Harry Warren, claims to possess and exercise the office of dairy and food commissioner and by what authority he exercises the powers of a state officer for the inspection of merchandise under color of the said office.
    “Hampton L. Carson,
    “ Attorney-General.”
    The demurrer was as follows :
    And now, to wit: May 11, 1906, B. Harry Warren, defendant above named, reserving all rights and legal instructions, demurs to the suggestion and complaint for writ of quo warranto in above case, and for cause thereof avers that the same is insufficient in law to justify the demands contained in the writ issued, that he “ show by what authority he ... . claims to possess and exercise the office of dairy and food commissioner and by what authority he exercises the powers of the said office for the inspection of merchandise under color of the said office,” for the following reasons :
    1. The title of defendant to the office of dairy and food commissioner is admitted, to wit: appointment thereto by the governor of the commonwealth.
    2. The acts of assembly recited and set forth in said suggestion and complaint, as defendant is informed by counsel and believes, are valid and not in conflict with the constitution of the state.
    3. Even if certain sections of the said acts of assembly should be held to be unconstitutional, as averred, the validity of said office would not be affected thereby, said sections not applying to the creation of the office, or his appointment thereto, and not being necessary to enable him to perform its duties, and he having official duties to perform other than those charged in the suggestion and complaint as being illegal.
    4. The acts performed by the defendant and his agents as set forth in the fifth section of the suggestion and complaint are not those of inspectors of merchandise and do not evidence that said office is a state office for the inspection of merchandise as contemplated and prohibited by section 27, article III, of the constitution, the only examination and analysis being made after the samples of food were procured by purchase, and when the goods were the property of the defendant or his agent, the purpose being to ascertain whether or not they were adulterated and the pure food laws of the commonwealth violated.
    March 4, 1907:
    5. Even if the acts of said agents in procuring samples be considered illegal, no inspection of merchandise is contemplated or authorized by the said acts of assembly, and they and other acts committed by the defendant and his agents in the enforcement of said acts of assembly could not affect' their validity of defendant’s title to said office.

      Elton J. Buckley and John H. Fow, for petitioner
    Under the modern proceedings in the nature of quo warranto, not only the title to'the respondent’s office, but the constitutionality of the various acts of assembly under which the respondent holds his office and exercises his powers, may be examined; Com. v. Dentworth, 145 Pa. 172; Hinze v. People, 92 Ill. 406.
    Inasmuch as the act of May 26, 1893, as amended by the act of March 15, 1895, contains no provisions except those creating the office of dairy and food commissioner, and clothing him with power of inspection under existing and future laws forbidding the adulteration of dairy products, the entire act is unconstitutional, because it comprehends but one purpose, and that unconstitutional. Also that such portions of all subsequent statutes which provide for their enforcement by the dairy and food commissioner are unconstitutional, though the residue of the latter acts, forbidding the adulteration of food, is constitutional: State ex rel. v. Dousman, 28 Wis. 541; Warren v. Mayor, etc., 68 Mass. 84; In re East Grant Street, 121 Pa. 596; Com. v. McKeesport Wharfboat Co., 11 Pa. Dist. Rep. 215; Com. v. Houseman, 11 Pa. Dist. Rep. 480.

      S. J. M. McGarrell, Cyrus Gordon and Hampton L. Garson, attorney general, with them Chas. L. Brown and T. L. Vandershiee, for appellee.
    The only judgment in quo warranto is ouster from office. The incumbent’s conduct is not in issue unless it amounts to forfeiture of office: Cleaver v. Porter, 34 Pa. 283.
   Opinion op

Mr. Justice Brown,

This is an original proceeding before us to test the constitutionality of tlie office of respondent as dairy and food commissioner of the state. The issuance of the writ of quo warranto was requested by the attorney general because he felt that the questions raised in the complaint required determination here in the first instance, but he properly, as the law officer of the state, associated himself with counsel for respondent in support of the constitutionality of the act under which the governor made the appointment.

By the Act of March 13, 1895, P. L. 17, the department of agriculture was established. It is administered by an officer known as the secretary of agriculture, appointed by the governor. This act is neither supplementary to nor amendatory of any other act, but is a piece of independent legislation, creating a new department of state government and providing for its proper administration. By the Act of May 26, 1893, P. L. 152, the powers of the state board of agriculture were enlarged, and for the purpose of securing the enforcement of the provisions of laws concerning dairy products, the president of that board ivas authorized to appoint as his agent a dairy and food commissioner, but the appointment to that office, which is now held by the respondent, is made without regard to the act of 1893. Its provisions are not involved in this proceeding except as a reference is'made in the act of 1895 to the duties imposed by it upon respondent. After providing for the establishment of a department of agriculture, to be organized and administered by an officer to be known as the secretary of agriculture, the second and third sections of the act of 1895 define in detail the duties of that officer. He is charged with the administration of all laws designed to prevent fraud or adulteration in the preparation, manufacture or sale of articles of food. By the fourth section the governor is authorized to appoint a deputy secretary and four other officers of the department, one being the dairy and food commissioner.

The act of 1895, creating the department of agriculture, contravenes no constitutional provision. It is a piece of legislation passed in the interest of the public health and the general welfare, and neither the head of the department nor any one of the four subordinate officers fills an office, the creation of which is forbidden by the constitution. Nothing is said in the act as to the powers of the dairy and food commissioner, and it cannot, therefore, be said that the respondent ought to be ousted because he is exercising powers which the legislature, in the act authorizing his appointment, attempted to confer upon him in violation of the constitution. He is simply directed to perform, under the supervision of the head of the department, the duties which had been imposed upon the dairy and food commissioner when that officer was appointed by the president of the state board of agriculture, under the act of 1893, and that act is to be read in connection with the act of 1895, simply for the ascertainment of what duties had been imposed by it upon the dairy and food commissioner, anti which the act of 1895 requires him to perform. Turning to the act of 1893, we find the duty imposed upon the agent of the state board of agriculture, now the dairy and food commissioner appointed under the act of 1895, to be the execution and enforcement of all laws then in force, or thereafter to be enacted, in relation to the adulteration or imitation of dairy products. By the act of 1893, the state board of agriculture was charged with the enforcement of the provisions of the Act of May 21, 1885, P. L. 22, and, for the purpose of securing the enforcement of the provisions of that act or any other act concerning dairy products, it was authorized to appoint an agent, to be known as dairy and food commissioner, charged under its direction with the execution and enforcement of said laws. The act of 1885, which was the act intended to be enforced, is a constitutional piece of legislation: Powell v. Commonwealth, 114 Pa. 265; 127 U. S. 6 78. The only, judgment that can be entered against the respondent in this proceeding is ouster, and, having been appointed by the governor under a statute authorizing his appointment, which in itself contravenes no clause of the constitution and confers upon him no powers to be exercised by virtue of his office forbidden to be exercised by any state officer, his title to the office cannot be questioned.

But the complaint of the petitioners, at whose instance this writ was applied for, is that the respondent, under color of the act of 1895, under which he was appointed, and others set forth in the suggestion, has usurped and is exercising the power of a state officer for the inspection of merchandise, in violation of art. III. sec. 27 of the constitution, which provides that, “ No state office shall be continued or created for the inspection or measuring of any merchandise, manufacture or commodity, but any county or municipality may appoint such officer when authorized by law.” If other acts than that of 1895, under which the respondent admittedly was appointed and by which his duties alone are defined, confer powers upon him which ho cannot be permitted to exercise, we are not to pass' upon them in this proceeding. If he has been appointed to a lawful office, carrying with it by the words of the act creating it no coiistitutionally forbidden powers, he is not to be ousted because subsequent legislation may have conferred such powers upon him. His right to hold a lawful office is one thing ; his right to exercise enlarged powers which he may not lawfully exercise is another, and, having determined that he is holding a lawful office, we leave the question of his right to exercise alleged forbidden powers to be raised in some other proceeding, in which specific acts said to be performed by him under statutory powers prohibited by the constitution may be set forth and inquired into and restrained, if unlawful.

In this proceeding the judgment must be for the respondent on his demurrer, and the prothonotary is directed to enter it.


source: Caselaw Access Project

license: Public Domain

text:
    Armstrong v. Bickel, Appellant.

      Principal and agent — Stockbrokers—Short sale — Margins.
    Whore a customer authorizes a firm of brokers to sell stock “ short ” for him, that is, to sell on his account stock which he does not have and which they will be compelled to borrow for him, his undertaking with them is to reimburse them for any payments they may be compelled to make in the execution of his order, and to repay them for any losses that may result from it. In such a case in a rapidly rising market, the brokers, after their customer has refused to put up more margin, may purchase the stock, and charge the loss to his account, and they are not obliged to take into consideration rumors communicated to them by him that the stock may on the following day be settled for on a lower basis; nor are the brokers bound to hunt their customer up, and repeat to him every rumor or piece of information that may come to them before they can take steps for their own protection.

      Argued Oct. 31, 1906.
    Appeal, No. 126, Oct. T., 1906, by defendant, from judgment of O. P. No. 1, Allegheny Co., Sept. T., 1901, No. 532, on verdict for plaintiffs in case of John D. Armstrong, Ancillary Administrator of L. R. Bacon, and John D. Armstrong, surviving partner of L. R. Bacon and John D. Armstrong, trading as Lathrop R. Bacon & Company,, v. Oharles Bickel.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit by a firm of brokers against their customer to recover a balance alleged to be due on a stock transaction. Before Maofarlane, J.
    In addition to the facts stated in the opinion of the Supreme Court it appeared that the order to purchase the 200 shares of the Northern Pacific Railroad Company’s common stock was executed at 2:45s.p. m. on May 9, 1901, at the rate of $350 per share. A part of the loss was made good by collateral which the plaintiffs held, and they sued to recover the balance.
    The court gave binding instructions for plaintiffs.
    Yerdict and judgment for plaintiffs for $31,075.65. Defendant appealed.

      Error assigned was in giving binding instructions for plaintiffs.

      J. S. Ferguson, with him E. G. Ferguson, for appellant.
    A broker is required to .use such skill as is ordinarily possessed and employed by persons of common capacity engaged in the same trade or business, and such diligence as persons of common prudence are accustomed to use about their own business and affairs: Bronnenburg v. Rinker, 2 Ind. Appeals, 391 (28 N. E. Repr. 568); McFarland v. McClees, 17 W. N. C. 547; Hamond v. Holiday, 1 C. & P. 384; Pratt v. Patterson, 112 Pa. 475; Gheen v. Johnson, 90 Pa. 38; Peckham v. Ketchum, 18 N. Y. Superior Ct. 506.
    A broker is not authorized, to buy in stock on his client’s account, unless he has given a reasonable notice to furnish more margins: Lazare v. Allen, 20 App. Div. 616 (47 N. Y. Supp. 340); Learock v. Paxson, 208 Pa. 602.

      March 4, 1907:
    The demand for margins must be definite and certain: Boyle v. Henning, 121 Fed. Repr. 376.

      William Kaufman, with him Joseph A. Langfitt and H. W. McIntosh, for appellees.
    The case is ruled by Morris v. McCutcheon, 213 Pa. 249.
   Opinion by

Mr. Justice Brown,

The appellee, John D. Armstrong, and his deceased partner, Lathrop R. Bacon, were brokers doing business in Pittsburg and New York. The appellant was one of their customers, for whom they sold “ short,” in November, 1900, 200 shares of Northern Pacific Railway stock. They borrowed this stock, through Menzesheimer & Company, their New York correspondents, from Hertzfeld & Stern, a firm of brokers in that city. The “short” sales of the 200 shares of stock had been made at about $60.00 or $70.00 per share. In May, 1901, there was a most extraordinary rise in this stock, due to the efforts of two rival interests to acquire control of a majority of it. On the morning of May 9, at about 10 o’clock, the appellant went to the office of his brokers, and was told by the appellee that the stock might go up to $180 or $200 per share and additional margin was asked for the firm’s protection. Bickel complied with this demand and protected the stock by depositing satisfactory collaterals which brought the margin up to $230 per share. So rapid and abnormal was the rise, however, that within an hour the stock was selling at $600 or $700 per share, and Bickel was asked for more margin. To this he replied that he could not margin it at that price ; that he had not sufficient margin to give the firm to cover at that price, and that it was all nonsense to request margins, because the firm would not cover the stock. An hour later, at about 12 o’clock, the stock was quoted at $700 or $800 per share, and the request for more margin was renewed by the appellee. Bickel states that he said he could not margin the stock at that price. The reply was that if margins were not given they would have to buy. To this, according to his own testimony, he replied: “ I told him he ought not to do that; in fact, he must not do it; if he did he certainly would ruin me and he would hurt himself; and I further told him of a rumor I had heard. ... I had heard there would be a settlement made at $150, or something like that, and the answer he gave me was he didn’t care about these rumors and he would pay no attention to them.” Shortly afterwards the firm bought the stock on account of the appellant and this suit is for the loss sustained.

The appellant had other deals with his brokers, but with them we have no concern. The single question which he now raises is whether as to this one transaction the “ short ” sales of 200 shares of stock, and the subsequent purchase of the same number by the firm on his account to enable them to return the stock they had borrowed for the purpose of making the sales for him, he had submitted on the trial sufficient evidence of their negligence or failure to perform their duty to him to defeat their right to recover the difference between $350 per share and the sum for which he had protected the stock. "Under the facts stated, and which are conceded by the appellant, the court directed a verdict against him, and his complaint is that the jury were not allowed to determine whether there was such a failure on the part of the brokers to perform their duty to him in this transaction as ought to defeat their right to be reimbursed for their loss sustained in purchasing the stock for him.

"When Bickel authorized Bacon & Company to sell the stock short for him, that is, to sell on his account stock which he did not have, and which they would be compelled to borrow for him, his undertaking with them was to reimburse them for any payments they might be compelled to make in the execution of his order, and to repay them for any losses that might result from it: Bibb v. Allen, 149 U. S. 481. On the other hand, the duty of the brokers to the customer was to protect him against any loss that might result from disregard of the- express terms of their agency, or of an obligation manifestly implied in it. The undertaking of the appellant was to have, at all times, money or securities in the hands of the appellee and his partner sufficient to enable them to buy 200 shares of the stock which they borrowed for him and which they might at any time be called upon to return. All this he well knew and acknowledged his obligation by increasing his margin to $230 per share. When the extraordinary situation arose later in tho day on May 9, his obligation to continue the protection of his brokers did not cease. In the rise and fall of the market they could make no profit in the stock they were handling for him. All they had in the transaction was their usual commission. Gain in it was to be for the customer; and loss in it ought not to be theirs. When called upon for additional margin or protection at 11 o’clock he admits he told the firm that he could not margin the stock at its price at that time. Later in the morning, about 12 o’clock, the appellee called upon him and renewed the request for more margin. This was refused by the appellant. The following is what took place between them at that time, according to his own testimony: “ Q. Give us his language ? A. He asked me for more margins. I told him I couldn’t margin it at that price. Q. What was the price then ? A. I believe $700 or $800, as far as I can recollect. Q. Did he ask you for any particular amount ? A. No, he didn’t. Q. Did you tell him you were all in ? A. No, I didn’t tell him that. Q. What else was said at that time? A. He told me if I didn’t give him margins he would have to buy., Q. What did you say ? A. I told him he ought not to do that; in fact, he must not do it; if he did he certainly would ruin me and he would hurt himsel f; and I further told him of a rumor I had heard. Q. Tell about that ? A. I had heard there would be a settlement made at $150 or something like that, and the answer he gave me was, he didn’t care about those rumors, and he would pay no attention to them.” At this point what was the situation ? The customer had not asked for a reasonable time to enable him to increase the margin, but there was an absolute refusal to further protect the stock, because, as he said, he could not do so. True, he testifies that he told his brokers of a rumor he had heard that there would be a settlement of the stock at $150, and that Armstrong replied he would pay no attention to such rumor. On a mere rumor the brokers would not have been expected as prudent men to delay protecting themselves after their customer had refused to perform his duty of protecting them. He himself did not act on the rumor by putting up more margins, but now complains that the brokers did not out of their own funds protect the stock for him. If they had done so, it would have been at their peril, for if the stock had continued to rise and if he had been called upon to pay an advanced price for the same, they would have been met by his statement that he had told them he would put up no more margin. Under the cirqumstances, there was nothing for them to do except what they did. As to this the learned trial judge most aptly and truly said : “ Inasmuch as he had not asked for any definite amount of margin, and Bickel had refused, according to his own statement, to margin at the price the stock stood at, $700, it was a situation where Armstrong had to protect his own firm, and he waited at his own risk. If the market had advanced he would have been the loser, and Bickel would have been liable only for a price at which Armstrong could have bought, had he sent in his order at once. As it was, Bickel was a gainer by the delay. It was not, we think, Armstrong’s duty to make any further demand under the facts of the ease. . . . As for the rumors of a settlement at $150, the defendant had heard them. If he relied upon them he should have put up the margins, or at least offered what he could. His information was as definite as any rumors that were proved by the testimony. The only thing that he did not know was that Hertzfeld & Stern had given notice that they would not require deliveries that day, and, as before said, this was no guaranty as to the next day.”

In his charge the learned trial judge said : “ On the turning point of the case, as I view it, there are no disputed questions of fact.” This is true. What the appellant complains of as the negligence of the appellee’s firm is their failure to give him notice of information that had come to them about the situation of the market. With the stock jumping, according to the testimony, $75.00 and $100 at a time, reaching $1,000 per share at 11:30, the brokers were not bound to hunt him up and repeat to him every rumor or piece of information that had come to them before they could take steps for their own protection. After his refusal to protect them they were not required, in the admitted condition of the market, to go to him, after hearing rumors or receiving information, and give him an opportunity to reconsider his determination not to protect the stock. They were in peril, placed there by his failure of duty to them, and their right was to go into the market and purchase the stock at the best price for which they could buy it. This is all they did, and there is not even the appearance of any failure of duty by the firm of the appellee to the appellant.

Judgment affirmed.


author: Mr. Chief Justice Mitchell,

text:
    McNeile’s Estate.

      Wills — Power of appointment — Exercise of power — Power to sell.

    Testator gave his widow a testamentary power of appointment to divide his estate “ among such of my children or their issue, in such shares and proportions as she may see proper and best.” The widow devised the estate to her executors in trust to sell the same and distribute the proceeds amongst six of her children, naming them. Held, that the appointment to the six children was valid, and that the power of sale to the executors delegated nothing but the ministerial authority to carry out her commands after her death.
    In the above case the widow gave by will out of her own estate certain pecuniary legacies to her other three children, and gave her own residuary estate to the six children in whose favor she had appointed under the will of her husband. In partition proceedings, the six children elected to take their share as land. Held, that the other three children had no standing to object to irregularities in the partition proceedings.
    Argued Jan. 11, 1907.
    Appeal, No. 172, Jan. T., 1906, by II. Howard McNeile et al., from decree of O. C. Phila. Co., Jan. T., 1905, No. 188, dismissing a bill of review, and confirming the inquest for partition of the real estate of Hugh McNeile, deceased, under partition proceedings.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Petition for bill of review and motion to confirm inquest in partition.
    The material portion of the will of Hugh McNeile was as follows :
    “ 2. I hereby empower my wife in case she shall continue my widow during her life (but not otherwise) to make a will, or other writing in the nature thereof, directing my said estate to be divided to and among such of my children, or their issue, in such shares and proportions as she may see proper and best.”
    The will of Anna McNeile gave $4,500 to be distributed amongst John PI. McNeile, H. Howard McNeileand AlbertB. McNeile. She further directed as follows :
    “ By the will of my late husband I am empowered to make a will directing his estate to be divided to and among such of my children or their issue in such shares or proportions as to me may seem proper and best, I therefore give, devise and bequeath to my executors and the survivor of them all the said real and personal estate (except 1,935 SouthBroad street, which I have devised to my daughter Mary). Upon the same trusts and with all the powers and authorities, and for the same uses and purposes as is hereinafter mentioned in this my last will in regard to the rest, residue and remainder of my estate, ....
    “ And as to all the rest, residue and remainder of my estate, .... I do hereby give, devise and bequeath unto my executors and the survivor of them in trust to manage and sell the same .... and I direct the proceeds of such sales be divided equally between my four daughters, Jane H. Thompson, Mary McNeile, Margaret C. McNeile and Leonore McNeile, and my two sons, Raymond McNeile and Ashton McNeile.”
    On answers filed in partition proceedings by John H. Mc-Neile, H. Howard McNeile and AlbertB. McNeile, it appeared that the proceedings had reached a stage in which a rule to accept or refuse the properties at the valuation fixed by the inquest had been obtained, and acceptance of service thereof had been indorsed by all the parties in interest, whereupon the rule was made absolute and the division of the property was decreed.
    Nineteen days after their acceptance of service, the petitioners, three of the children of the testatrix, filed an answer setting up that no partition can at this time be made, because the testator failed to vest in his widow a legal power of appointment over his real estate, and because the donee of the power failed to legally exercise any power which was given, or attempted to be given, to her by the testator’s will.

      March 4, 1907:
    The answer and a petition for a bill of review were dismissed.

      Errors assigned were in dismissing the petition and in dismissing the answer to the bill of review.

      Henry J. Scott, for appellant,
    cited as to the power of appointment; Wickersham v. Savage, 58 Pa. 365; Horwitz v. Norris, 49 Pa. 213; Smith’s Estate, 4 W. N. C. 265; Boyle’s Estate, 5 W. N. C. 363; Darling v. Edson, 4 Pa. Superior Ct. 498; Stephenson v. Richardson, 88 Pa. 40.

      Wm. White, Jr., for appellee, was not heard.
   Opinion by

Mr. Chief Justice Mitchell,

Hugh McNeile’s will gave to his widow an estate for life with a testamentary power of appointment, if she continued his widow, among such of his children and in such shares as she might see proper, and in case of her remarriage, or in default of appointment, then to all his children equally. Such disposition of his estate was entirely legal. If it were necessary to inquire where the fee was during the life estate, it is clear that it was in remainder contingently to the children appointed, and in default of appointment to all the children in common.

The widow remained unmarried and made a valid appointment among six of her children, naming them. It is true she devised to her executors in trust to sell and distribute the proceeds among her appointees, but this was solely for convenience of distribution. The discretion given her to select the appointees she exercised herself, and delegated nothing but the ministerial authority to carry out her commands. As thé power was testamentary and could not be put in effect until her death, the actual execution of it had to be done by another hand, and she did no more than name the hand.

The case of Stephenson v. Richardson, 88 Pa. 40, is relied on by appellant, but the power there in question was narrower than here. The testator there devised real estate to the sole and separate use of his daughter, not to be subject to sale or mortgage, and after her death to “ descend in fee simple, to such of her children as she might direct,” etc. It was held that as there was no power of sale and testator intended that the estate should descend as land, a direction by the daughter to her executors to sell and divide the proceeds was not a good execution of the power. The case is very briefly reported, but the argument of the appellee shows what must have been the ground of the judgment. Even so regarded it is rather a narrow and technical construction of the will, and does not seem to have been treated as a precedent in any later decision. It is certainly not a precedent for this case.

The other questions argued are not in the case. Whether the partition in the orphans’ court was strictly regular, while a bill was pending in the common pleas ; whether an inquest should have been awarded while the petition and amended-answer were formally undisposed of; or whether the authority of the executors under the will to sell at their discretion was a bar to partition in either form, we need not consider. The objections are raised only by appellants who have no interest in the matter. The money legacies left to them by their mother’s will were clearly payable out of her own estate and were expressly not chargeable even on her own land. The appellants were not, therefore, in any way interested in their father’s estate. The election by the six appointees to take their shares as land closed all objection to the partition proceedings by them, and the appellants had no standing to raise any question on the subject.

Decree affirmed, with costs.


text:
    Jones v. Beale, Appellant.

      Municipal liens — Tax liens — Service by posting and advertisement— Act of June 10, 1881, P. L. 91.
    The Act of June 10, 1881, P. L. 91, providing for service by posting and advertisement in proceedings on a municipal claim, applies to proceedings against a registered owner of real estate on' a municipal lien for taxes.
    The act applies to a registered owner who is dead.
    Where the record of a scire facias sur municipal lien for taxes shows on its face that the registered owner is dead, an acceptance of service for the registered owner, or for “her estate” is fatally defective. In such a case the fact that the administrator of the registered owner is made a party defendant, and service accepted for him, is immaterial, if the record fails to show any exceptional right of the administrator to represent the real estate.
    There is no such legal entity as an “estate” and as a designation of a party to be served with a writ it is unknown to the law.
    In matters depending on statutory authority for their entire validity the statute must be followed strictly.
    Remedial statutes should be applied so as to make the remedy coextensive with the evil, if it can be done by reasonable construction in furtherance of its object.
    Argued Jan. 14, 1907.
    Appeal, No. 339, Jan. T., 1906, by defendant, from judgment of C. P. No. 3, Phila. Co., June T., 1906, No. 3,726, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Mary J. Jones, Executrix of the Estate of Silas Jones, deceased, v. George M. D. Beale.
    Before Mitchell, O. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Ileversed.
    Assumpsit to recover balance of purchase money for real estate. Before MoMichael, P. J.
    The defendant declined to pay the purchase money on the ground that a tax sale through which plaintiff claimed title was fatally defective.
    Other facts appear by the opinion of the Supreme Court.
    The court made absolute rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.
    Simons v. Kern, 92 Pa. 455; Phila. v. Cooper, 212 Pa. 306.

      Walter Biddle Saul, with him Robert W. Finletter, for appellant, cited :

      Ira Jewell Williams, with him Francis Shunk Brown and Alex Simpson, Jr., for appellee.
    Service by scire facias sur mechanics’ lien upon the administrator of a deceased owner is good : Reece v. Haymaker, 164 Pa. 575.
    In every case in which a lien or charge exists upon real estate and the owner dies, the remedy is by scire facias against the administrator, including a mortgage : Chambers v. Carson, 2 Whart. 365; Mather v. Clark, 1 Watts, 491; Mevey’s Appeal, 4 Pa. 80; Tryon v. Munson, 77 Pa. 250; a pre-existing judgment: McMillan v. Red, 4 W. & S. 237; McMurray v. Hopper, 43 Pa. 468; Middleton v. Middleton, 106 Pa. 252; Grover v. Boon, 124 Pa. 399; Shannon v. Newton, 132 Pa. 375; and a ground rent: Rushton v. Lippincott, 119 Pa. 12.
    March 4, 1907:
    There being a registered owner it was essential that the claim should be filed against him, and that service be made upon him, as otherwise no title would pass: Simons v. Kern, 92 Pa. 455; Gans v. Phila., 102 Pa. 97.
    If a defendant dies, that fact may be suggested by the plaintiff and the name of his executor, administrator or heir-at-law embodied in the suggestion. This will not operate as a substitution, but will support a scire, facias directly to the parties so named : Hall’s Appeal, 1 Pennypacker, 223; Philadelphia v. Jenkins, 162 Pa. 451.
    Acceptance of service is, of course, equivalent to a general appearance, which waives any defect in the service : Boro, of Jeannette v. Roehme, 9 Pa. Superior Ct. 33; s. c., 197 Pa. 230; Philadelphia v. Scott, 72 Pa. 92; Hering v. Chambers, 103 Pa. 172.
   Opinion by

Mr. Chief Justice Mitchell,

The Act of March 14, 1865, sec. 9, P. L. 324, after directing that it shall be the duty of owners of houses and lots in the city of Philadelphia to furnish descriptions of their lots to the chief engineer and surveyor (now the registry bureau of the department of public works), provides that “ no property so returned shall be subject to sale for taxes thereafter to accrue as a lien of record thereon, except in the name of the owner as returned, and after recovery by suit and service of the writ on him made as in the case of a summons.”

By the supplementary Act of March 29, 1867, P. L. 600, the provision quoted was extended to '' taxes or other municipal claims.”

The object of both of these acts, as stated by Steeeett, J., speaking of the Act of March 23, 1866, P. L. 303, in Simons v. Kern, 92 Pa. 455, was “ to remedy the then existing grievances, fully recited in its preamble, among which were the oppressive costs and expenses to which property owners were subjected, and especially the sale of their property without notice to them.” These remedial statutes, however, were found in one respect to be more drastic than the evil required, for in the case of a registered owner who was nonresident or could not be found, no service as in case of summons could be made upon him, and the city was powerless to collect its just dues. In Simons v. Kern, 92 Pa. 455, it was held that service by posting and advertisement (the practice under prior laws) and a return of nihil habet as to the registered owner, was a nullity, that judgment founded on it was void, and that the defect was one of jurisdiction of which the purchaser at the sheriff’s sale was bound to take notice.

To relieve the situation in which the city was thus placed the Act of June 10, 1881, P. L. 91, provided : “ That whenever it shall be made to appear, by affidavit filed of record, that after diligent search and inquiry registered owners of any real estate, against which a municipal claim has been or may hereafter be filed’ as a lien, by or in the name of any city of the first class, are nonresidents of such city, or cannot be found therein, it shall and may be lawful for the sheriff to whom any writ of scire facias for the collection of any such claim is directed, to proceed to make known the same by posting ” and advertisement, etc.

The first question that arises relative to this act is whether it applies to registered taxes. They are not expressly named, the words of the act being any municipal claim.” But registered taxes are in a general sense municipal claims, i. e., claims by the city in its municipal capacity, and they are assimilated in their enforcement by lien of record and method of collection by scire facias. The hardship to the property owner by sale without notice, etc., was the same in both cases, and the remedial acts of I860 and 1867 provided the same remedy for both, by the registration of the name of the owner, and prohibition to sell without service of the writ on him as in the case of a summons. If the act of 1881 does not apply to registered taxes, then as to them the city is still in the same position as it was when Simons v. Kerns was decided, helpless when no service can be made on the registered owners. When the legislature had before it for consideration two kinds of claims which it had classed together in the act of 1867, and which in practice had developed the same inconvenience to the city, it is not reasonable to suppose that it meant the remedy, equally needed and equally adapted to both, should be restricted to one. ¥e are of the opinion that the act of 1881 applies to registered taxes as well as to other municipal claims.

The appellee refers to the Act of March 23, 1866, P. L. 303, as in pari materia, and cites Philadelphia v. Scott, 72 Pa. 92, in which it was held that that act did not apply to registered taxes. But that decision was founded on the difference in' prior laws in relation to taxes, historically reviewed by Bead, J., and the reasoning of the opinion, never entirely satisfactory, is based on the difference in the kind and expense of advertisement (one by description of the property, the other merely by the name of the delinquent taxpayer), and the collection by different departments of the city government, i. e., the receiver of taxes in one case and the city solicitor in the other. The bearing of that case is not so direct as to require us to make what we could not but consider an erroneous application of. the law in this.

The remaining question under the act of 1881 concerns the method of service where as in the present case there is an owner registered but he is dead. The act makes no express provision for such case. The appellee contends that being casus omissus we are relegated to the prior law, and service must be made as in mechanics’ claims, in which service on an executor or administrator is held good, citing as parallel cases the proceedings under mortgages, pre-existing judgments and ground rents. But there is a serious distinction between the classes of cases. In the class suggested of mortgages, judgments, ground rents, etc., the obligation grows out of personal contract or conduct which implies notice in its inception and the duty of keeping informed as to the status of the obligation itself from time to time. The tax or municipal claim on the other hand is an imposition in rem of which the owner has not necessarily any personal knowledge or notice at all. To secure him such notice was the object of the statutes involved, and we should, not go back to the old evil unless under constraint by want of alternative. In Simons v. Kern, already cited, it is said “ Prior legislation as to the mode of service on registered owners sq far as it is inconsistent with the supplement of 1867 was in effect repealed thereby, and where it appears of record that the writ was not served ‘ as in the case of a summons’ there is clearly a want of authority either to issue or execute the writ.” And in Philadelphia v. Cooper, 212 Pa. 306, it was held that a scire facias on municipal claim not served on the registered owner, and no affidavit filed that he was a nonresident or could not be found, was so fatally defective that it would not support an alias legally served but issued after the lien of the claim had expired. Our Brother Elkin said, “ The lien of the mechanic or municipal claim being by statute, its validity, duration and extent are wholly dependent upon compliance with the statutory provisions. ... If there is personal service on the registered owner, it must be in the same manner as a summons, as provided in the Act of March 1867, P. L. 600. If personal service on the registered owner is not made then an affidavit must be filed suggesting that the registered owner is a nonresident or cannot be found, to be followed by posting and publication, as provided by the Act of June 10, 1881, P. L. 91.”

These extracts are but recent expressions of the uniform current of decision, that in matters depending on statutory authority for their entire validity we must follow the statute strictly, and the further principle that remedial statutes should be applied so as to make the remedy coextensive with the evil, if it can be done by reasonable construction in furtherance of its object. The act of 1881, though making no express provision for the case of the death of the registered owner, has a provision for the facilitation of the city’s course in a closely analogous case. Where it is made to appear by affidavit filed of record after diligent search and inquiry that the owner is nonresident or cannot be found the 'sheriff is authorized to serve by posting and publication. Whether the registered owner is nonresident, or dead, produces the same obstruction to the statutory command to serve him as upon a summons. He is within the literal terms of the act that he cannot be found for purposes of service. The inconvenience to the city is the same and the remedy for the one case is equally appropriate. to the other. We are of opinion that it should be followed, and. thus the statute be made efficacious to the full extent of the mischief it was intended to remedy.

Turning to the record in the present case we find it bristling with irregularities. The claim is filed against an owner and Louisa O. Robeson, registered owner. A suggestion was filed by the city that “ Louisa O. Robeson, the registered owner, is deceased, and the present owner of the lot of ground against which this claim is filed is the estate of Louisa C. Robeson, deceased, Samuel L. Robeson, administrator, and its name is therefore suggested on the record as defendant.” On the same day the city filed an affidavit of service of the notice required by statute preliminary to the issue of a scire facias, in which the affiant deposes that Louisa O. Robeson is the owner or reputed owner and has a known residence in the city of Philadelphia, and that affiant had served the notice upon the said owner by handing it to Silas Jones. There is thus a direct contradiction between these two papers filed on the same day by the city as plaintiff. In the affidavit no information is given as to who Silas Jones was, nor why he should be served with notice for the registered owner whom the affidavit avers to be living. On the other hand, service of the notice itself, of which a copy was filed, was accepted by Silas Jones, as “attorney for Samueí L. Robeson, administrator of the estate of Louisa E. Robeson, deceased.” "When we come to the scire facias the matter is not improved. It was issued on the claim filed as already noted against Louisa C. Robinson, owner or reputed owner, and Louisa E. Robeson, registered owner; recited the suggestion of the administrator as the present owner and commanded the sheriff to “ make known to the said Louisa C. Robinson, owner, and Louisa E. Robeson, Reg. Own., and the estate of Louisa E. Robeson, dec’d, Samuel L. Robeson, Adm., and to all such persons as may hold or occupy the said building and premises, .that they be and appear before the Judges of our Court,” etc. Service of this writ was accepted by Silas Jones “attorney for defendants.” Notwithstanding the affidavit of service of the preliminary notice on Louisa O. Robeson, the registered owner, it is plain upon the whole record that she was dead, and there could be no acceptance of service for her. There could be none for her “ estate,” as there is no such legal entity. It is a convenient phrase sometimes to identify the subject of litigation in the orphans’ court, and in proceedings in rem it may be treated as harmless superfluity (as in Reece v. Haymaker, 164 Pa. 575), but as a designation of a party to be served with a writ it is unknown to the law. The third defendant was the, administrator who prima facie had no concern with the real estate, and whose exceptional right to represent it, if any he had, was not set out. The acceptance of service of the writ, was not by any one or for any one who answered to the statutory requirements, or could bind the rem. There was, therefore, an entire failure of such service as would sustain the judgment, and the sale, as in Simons v. Kern, was void for want of jurisdiction patent on the record of which the purchaser was bound to take notice.

The other point raised by the appellant as to the presumption of a trust in Jones from Ms having purchased while apparently acting as attorney for the owners, need not be considered. The plaintiff’s title not being marketable the appellant was not bound to accept it.

Judgment reversed and procedendo awarded.


author: Per Curiam,

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

      Negligence — Street railways — Infant—Boy darting in front of car.

    In an action by a boy seven years old against a street railway company to recover damages for personal injuries, binding instructions for defendant are proper, where it appears that at the point where the accident occurred, the middle of the street, was occupied by a market shed, narrowing the street so that the track on one side was close to the shed, and that as a car turned the comer into the track along the shed, the plaintiff, who was playing tag in the market shed, darted out and ran into the fender in the front of the car, receiving the injuries for which he brought suit.
    Submitted Jan. 14, 1907.
    Appeal, No. 320, Jan. T., 1906, by plaintiff, from judgment of C. P. No. 5, Pbila. Co., March. T., 1904, No. 806, on verdict for defendant in case of John Meloy, Jr., by his father and next friend, John Meloy, Sr., and John Meloy, Sr., v. The Philadelphia Rapid Transit Company.
    March 4, 1907:
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ".
    Affirmed.
    Trespass to recover damages for personal injuries.- Before Ralston, J.
    The opinion of the Supreme Court states the facts.
    Yerdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendant.

      Henry J. Scott, for appellant.

      Russell Duane and Thomas Learning, for appellee.
   Per Curiam,

There was no evidence of negligence on the part of defendant. The car going south on Second street reached the corner of Lombard at which point the middle of the street is occupied by a market shed, narrowing the street so that the track on the east side is close to the shed. As the car turned the curve into the track along the shed, the plaintiff, a boy of seven years, who was playing tag in the market shed, darted out and ran into the fender in the front of the car. The testimony to these facts is practically undisputed, and brings tbe case clearly under the authority of Sontgen v. Kittanning, etc., St. Ry. Co., 213 Pa. 114.

J udgment affirmed.


text:
    Consolidated National Bank v. McManus, Appellant.

      Practice, C. P. — Discontinuance—Leave to discontinue.

    A discontinuance in strict law must be by leave of the court, but it is the universal practice in Pennsylvania to assume such leave in the first instance.
    Causes which will move the court to withdraw its assumed leave and set aside the discontinuance are addressed to its discretion and usualjy involve some unjust disadvantage to the defendant or to some other interested party.
    March 4, 1907:
    The fact that a case is at issue on a plea of set-off, is not sufficient to prevent the plaintiff from taking a nonsuit; and without some other hardship, the samo rule applies to a discontinuance in actions at law. The practice in equity is somewhat stricter.
    Where a rule is taken by a defendant to strike off a discontinuance, and this rule is heard and discharged by the court, such action by the court is equivalent to a grant of leave to discontinue, and thereafter the court is under no obligation to reconsider the matter on a new and amplified application by the defendant. If the defendant failed to present his whole case at the hearing of the rule, as he was bound to do, the fault or misfortune was his own.
    Argued Jan. 14, 1907.
    Appeal, No. 323, Jan. T., 1906, by defendant, from order of C. P. No. 1, Phila. Co., March T., 1903, No. 978, dismissing application to strike off discontinuance in case of Consolidated National Bank v. Michael Mc-Manus.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit on promissory notes.
    Petition to strike off discontinuance.
    The petition alleged that the defendant was entitled to set off against the notes a sum largely in excess of their aggregate amount.

      Error assigned, was the order dismissing the petition.

      James W. M. Newlin, for appellant.

      George R. Van Dusen, with him John G. Johnson, for appellee.
   Per Curiam,

A discontinuance in strict law must be by leave of the court, but it is the universal practice in Pennnsylvania to assume such leave in the first instance. This was stated to be the established practice as long ago as 1843, in Schuylkill Bank v. Macalester, 6 W. & S. 147, where it is said per curiam “ all the cases show that a discontinuance must be founded on the express or implied leave of the court. In England this leave is obtained on motion in the first instance, and here it is taken without the formality of an application, but subject to be withdrawn on cause shown for it; that is the whole difference.”

The causes which will move the court to withdraw its assumed leave and set aside the discontinuance are addressed to its discretion and usually involve some unjust disadvantage to the defendant or to some other interested party, such as a surety. The fact that a case is at issue on a plea of set-off is not sufficient to prevent the plaintiff from taking a nonsuit: McCredy v. Fey, 7 Watts, 496; Gilmore v. Reed, 76 Pa. 462. And without some other hardship the same rule applies to a discontinuance, in actions at law. The practice in equity is somewhat stricter.

The plaintiff, following the usual practice, entered a discontinuance on the assumed leave of the court. A rule was then taken by defendant to strike off the discontinuance, which the court heard and discharged. This was equivalent to a grant of leave. Defendant then filed" a petition for a rule to show cause why the order discharging the previous rule should not be rescinded and the discontinuance be set aside. This petition the court dismissed and from this action the present appeal was taken. Having considered and discharged the rule the court was not bound to reconsider the matter on the new and amplified application by petition. If appellant failed to present his whole case at the hearing of the rule, as fully as his present counsel now thinks desirable, the fault or misfortune was his own. He was bound to present his whole case and his failure to do so did not entitle him to a second hearing. The court might ex gratia have given him a second rule, but was under no obligation to do so.

Judgment affirmed.


author: Mr. Justice Stewart,

text:
    Philadelphia to use v. Pierson, Appellant.

      Principal and surety — Subcontractor—Contractor’s bond — City of Philadelphia — Judgment.
    In an action on a bond given to the city of Philadelphia by a contractor for a school building to secure subcontractors and material-men, whore it appears that judgment had been entered by default against the contractor for the price of the material furnished by plaintiffs, as set forth in the contract, the plaintiffs may offer in evidence the contract and the record of the judgment against the contractor to establish the amount of their claim, without producing any independent evidence as to the market value of the work and materials furnished. Independent evidence would only be required if mistake or collusion between the contractor and the plaintiffs to defraud the surety were shown.
    In such a case the defendant cannot claim that the action is premature because the contract provided that the plaintiff was to be paid only in proportion as the contractor received his payments from the city, and that five per cent was to be retained for a year after final payment by the city, and that this time had not expired. The surety’s undertaking is to pay what becomes due from the contractor to the plaintiff on the former’s default. The judgment against the contractor is therefore conclusive.
    In an action by a subcontractor against a surety in a penal bond given by a contractor, where the statement of claim avers distinctly that a bond of indemnity against costs had been given by the use plaintiff, and been approved by the city solicitor, and the defendant raises no issue as to this averment either by plea in abatement, or notice under special matter, but files the general plea, the plaintiff is not called upon at the trial to prove affirmatively the approval of the indemnity bond by the city solicitor.
    Argued Jan. 18, 1907.
    Appeal, No. 313, Jan. T., 1906, by defendant, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1903, No. 3,692, on verdict for plaintiff in case of City of Philadelphia to use of the Penn Metal Ceiling & Roofing Company, Limited, v. George W. Pierson and The Lincoln Savings & Trust Company.
    Before Mitchell, C. J., Fell, Brown, .Mestruzat, Potter, Elicin and Stewart, JJ.
    Affirmed.
    Assumpsit on a penal bond.
    The facts are stated in the opinion of the Supreme Court.

      Defendant presented the following points:
    1. Under all the evidence in the case, the verdict of the jury must be for the Lincoln Savings & Trust Company, defendant. Answer: Refúsed. [1]
    2. If the jury believe that only a part of the work which the use plaintiff agreed to perform was finished on October 1, 1903, at the time the architect for the board of public education made his estimate of work done on the schoolhouse on which he based the amount of the payment made by the city on October 13,1903, then, at the time the use plaintiff brought this suit, it was entitled to sue only for the value of eighty per cent of the work completed by it on October 1, 1903. Answer: Refused. [2]
    3. As the contract between George W. Pierson and the use plaintiff provides that five per cent of the contract price shall be retained until one year after the city of Philadelphia shall have made final payment for the building, and as the plaintiff has shown that it brought suit before the said year expired, the use plaintiff is not entitled to recover five per cent of its contract price. Answer: Refused. [3]
    Verdict and judgment for plaintiff for $1,761.61. Defendr ant appealed.

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

      John Kent Kane, for appellant.
    A material man who has a claim against a city contractor cannot recover from the surety on the penal bond, given to the city to secure subcontractors and materialmen, where the bond of indemnity against costs required by the ordinance, and made a condition precedent to the right to use the city’s name, was not shown to have been executed and filed by the plaintiff or approved by the city solicitor : Harrisburg v. Mish, 14 Pa. Superior Ct. 496; Reilly v. Philadelphia, 60 Pa. 467; Pell v. Phila., 81 Pa. 68; Bladen v. Phila., 60 Pa. 464; Norwegian Street, 81 Pa. 349.
    In the case at bar the plaintiff would have no right to use the city’s name, were it not for the ordinance, and even with the ordinance it had no right to use the city’s name unless it complied with the condition precedent as to giving a bond for costs : Ammerman v. Stone, 11 Pa. Dist. Rep. 726.

      A material man who has a claim against a city contractor cannot recover from the surety on the penal bond the contract price, where the only evidence offered is that the plaintiff complied with his contract, which was general in its terms and for a lump sum, and that the contractor had not paid him and there was no evidence as to the market value of the work and labor done and materials furnished : Leo v. Burke, 66 Pa. 336; McCune v. Hatch, 18 Pa. Superior Ct. 469; Philadelphia v. Malone, 214 Pa. 90; Grier Bros. v. Assurance Co., 183 Pa. 334.
    A material man who has a claim against a city contractor cannot recover from the surety on the penal bond, where the contract with the city contractor provided for the payment of a lump sum in proportion as the city contractor should receive his payments from the city, not over eighty per cent of the value of the work done and materials furnished, until all the contract had been completed, and then not over ninety-five per cent, the balance of five per cent to be retained by the contractor until one year after the city shall have made final payment, and there is no evidence at the time the city made any payments, prior to the bringing of suit, what percentage of the plaintiff’s work had been done, or what proportion, if any, of the subcontractor’s “ work done and materials incorporated in said building ” was included in any said payments by the city prior to suit, or that the contract with the city was completed : Philadelphia to use v. Pierson, 211 Pa. 388.

      George Douglass Codmam, with him Ruby R. Vail and Edward, W. Magill, for appellee.
    The filing of a bond of indemnity against costs with the city solicitor, required by ordinance for the right to use the city’s name in a suit on the penal bond, is but a formal requisite prior to the issuing of the writ. Proof of filing the same and the approval thereof is not necessary upon the trial of the cause, where the statement of claim makes a clear and precise averment of the filing of such a bond and the approval thereof by the city solicitor, and there is no responsive denial thereto in the affidavit of defense or proof to the contrary upon the trial of the cause: Philadelphia to use v. Pierson, 211 Pa. 388; Apthrop v. North, 14 Mass. 167; Dedham Bank v. Chickering, 20 Mass. 335; Bank of H. S. v. Dandridge, 25 H. S. 64.

      February 25, 1907:
    The sum due in this case was already determined as a matter of record by judgment in this case against the principal. The verdict against the surety on the penal bond was determined by the judgment already obtained against the principal.
   Opinion by

Mr. Justice Stewart,

George W. Pierson, one of the defendants in the action below, contracted to erect a school building for the city of Philadelphia. The use plaintiff, the Penn Metal Ceiling & Roofing-Company, contracted with Pierson to furnish the steel ceiling-required by the specifications, for the sum of $1,495. Pierson having faffed to complete the building, the work was taken over and completed by the Lincoln Savings & Trust Company, the appellant here, Pierson’s surety. The use plaintiff not having been paid for the ceiling, which it had furnished and put in place before Pierson’s default with the work, brought this action upon the joint and several bond of Pierson and the Trust Company, which had been given the city to secure those furnishing labor and materials about the construction of the building. Judgment was taken against Pierson by default, for want of an affidavit of defense, for the sum of $1,499.23, and the case was proceeded with against the other defendant. On the trial the written agreement between contractor and subcontractor, showing the consideration agreed upon for the ceiling, was offered in evidence, as also the judgment obtained against Pierson in the action; but no independent evidence was adduced as to the market value of the work and materials employed in connection with the subcontract.

1. It is argued that recovery could be had only for the market value of such labor and materials, and as neither contract nor judgment established this, since presumably the subcontractor’s profits were included in the contract price, the plaintiff’s claim was wholly unsupported by the evidence. The answer to this is, that it is not so written in the bond. The obligation of the Trust Company was not to pay for labor and materials furnished according to their market value any more than it was Pierson’s. The latter’s obligation was to pay “ any and all persons, any and all sum or sums of money which may be due for labor and materials furnished,” etc. Pierson could not have been heard to say in defense of the action that the contract price exceeded the market value of the labor and materials employed, for what was due to the plaintiff, and therefore recoverable, was such sum as he had agreed to pay for the ceiling. No more could the Trust Company, for the obligation was the same with respect to each. There is no pretense of unfairness in the contract, or that the ceiling came short of the requirements of the specifications. Had mistake, or collusion between Pierson and the use plaintiff to defraud the Trust Company, been alleged, the cost and value of the ceiling might properly have been inquired into, and the recovery against the defendant restricted so as to accord therewith. But there was nothing of the kind; what was due from Pierson was the contract price, and it was what was thus due that the Trust Company agreed to pay, if Pierson did not.

2. The contention that the action was premature, inasmuch as the contract provided that plaintiff was to be paid only in proportion as Pierson received his payments from the city, and that five per cent was to be retained for a year after final payment by the city, overlooks the significance of the judgment against Pierson. That judgment determined finally that there was then due and owing from Pierson to the plaintiff the sum of $1,499.23. "What it determined cannot be made the subject of further litigation; the result there reached extends to every question in the proceeding which was legally cognizable: Lancaster v. Frescoln, 192 Pa. 452. When it is remembered that defendant’s undertaking was to pay what was due from Pierson to the plaintiff on the former’s default, it becomes apparent that the question so elaborately argued, as to when a right of action accrued under the contract, has no place in the present inquiry.

3. It was set out in the affidavit of defense that deponent is informed that at the time the writ was issued in the above entitled case, the city solicitor had not in fact approved the bond of indemnity tendered to the city by the use plaintiff, and defendant therefore denies the allegations to that effect contained in the statement of claim.” Such a qualified and indefinite statement in an affidavit of defense would bo without any legitimate effect; but even were it otherwise, it could have no effect in determining the issue to be tried. The only purpose of an affidavit of defense is to avert summary judgment; the issue is determined by the pleadings in the case, and these alone. Here there was a general plea, with notice of special matter. This did not put in issue the fact distinctly alleged in the statement of claim filed, that the required bond had been approved by the city solicitor. Under this general plea nothing was put in issue but the plaintiff’s right and title to the thing claimed; that is to say, the right to compensation for the steel ceiling which, at its own proper cost and expense, it had furnished and pat in place for the city. The right to recovery in a particular action is one thing; the right to the thing itself, the subject of the action, is quite another. Under a general plea the latter right may be contested; if the former be denied, such issue is to be raised by plea in abatement, or notice under the special matter filed. As the case stood on the pleadings, the plaintiff was not called upon to prove affirmatively what appeared in his statement as matter of inducement. It was said in Horan v. Weiler & Ellis, 41 Pa. 470, in reference to; a like question'arising on the pleading: “If the defense could avail under any circumstances, it would be in avoidance, and would present an affirmative step to be taken by the defendant. He would be bound both to plead and prove the matter he relied on.” Here the defendant elected to go to trial on an issue of its own choosing, and it is now too late to introduce another.

The assignments of error are without merit. ' Judgment affirmed.


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

text:
    Sower’s Estate.

      Will — Construction—Occupancy of real estate.

    Testator, after having given his dwelling house to his wife for life, directed that the same should be considered as part of his residuary-estate, “subject to the conditions and stipulations hereinafter set forth as follows: If S (a nephew) shall within a reasonable time after the decease of my wife, express to my trustee a desire to occupy said dwelling house as a residence, he shall be allowed so to do upon the payment to my trustee of an annual rental of three hundred dollars. If the said S shall not so elect to occupy the said house and lot, then any member of the S family bearing that surname shall be allowed to occupy the same as a residence, provided the person so electing shall pay to my trustee an annual rental therefor of three hundred dollars and shall pay all taxes, water rent, municipal or other assessments which may be levied upon the said premises and shall pay for all gas consumed upon the premises and shall make all necessary repairs thereto and shall produce to my said trustee or any one representing it receipts for all such payments.” Held, (1) that under the will S merely had the first' right of choice as to the occupancy of the premises, but in no other way was he to be favored; (2) that if S elected to occupy the premises he was bound to pay not only the annual rental, but also the taxes, water rent, assessments and gas.
    Mitchell, C. J., and Fell, J., dissent.
    Argued Jan. 16, 1907.
    Appeal, No. 225, Jan. T., 1906, by Albert M. Sower, from decree of O. C. Piula. Co., Oct. T., 1902, No. 494, dismissing exceptions to adjudication in Estate of Charles G. Sower, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to adjudication.
    The facts are stated in the opinion of the Supreme-Court.

      Error assigned was in dismissing exceptions to adjudication.

      J. Whitaker Thompson, for appellant.
    It is to be noticed that the rights and privileges given to the other members of the Sower family are contingent upon Albert M. Sower not electing to exercise the privilege given to him. Therefore, the operation of the succeeding paragraph depends upon Albert M. Sower not having elected to occupy. But Albert M. Sower has elected, and he having elected, the contingency upon which the succeeding paragraph would come into operation has not arisen. The clause based upon that contingency therefore falls and becomes of no effect, and should be left out of consideration entirely.
    The intention of the testator must be collected from the words employed by himself in his will. No surmise or conjecture of any object which the testator may be supposed to have had in view can be allowed to have any weight in the construction of his will unless such object can be collected from the plain language of the will itself: Earl of Scarborough v. Savile, 3 Ad. &. Ellis (Eng.), 897; Mulliken v. Earnshaw, 209 Pa. 226; Scott’s Estate, 163 Pa. 165; Abbott’s Est., 198 Pa. 493; Gyger’s Est., 65 Pa. 311; Vance’s App., 141 Pa. 201.
    March 11, 1907:
    The first taker is regarded as the preferred object of the testator’s bounty, and in doubtful cases the gift is to be construed so as to make it as effectual to hirn as possible: Wilson v. McKeehan, 53 Pa. 79; McFarland’s Appeal, 37 Pa. 300; Watson v. Smith, 210 Pa. 190.
    The duties of the trustee, in this case, are that of receiving the income and of the preservation of the estate for those in remainder — hence the legal title is in the trustees and an active trust created: Bacon’s Appeal, 57 Pa. 504; Hemphill’s Est., 180 Pa. 95; Krebs’s Est., 184 Pa. 222.

      Meredith Manna and Framéis Fisher Kane, with them Warren G. Graham, for The Children’s Aid Society, Protestant Episcopal Mission and Women’s Christian Association, appellees. .

      Joseph 8. Goodbread, for Mary E. Stokes, Lillie W. Shipley and Rev. Malcolm A. Shipley, Jr., appellees.
   Opinion by

Mr. Justice Potter,

The question raised by this appeal involves the proper construction to be given to the following paragraphs of the will of Charles G. Sower, deceased :

“ At the time of the decease of my said wife, Caroline A. Sower, I order and direct that my dwelling house, situate at No. 1926 Arch street, in the city of Philadelphia, and the lot of ground adjoining the same on the west thereof, be considered as part of my residuary estate, subject to the conditions and stipulations hereinafter set forth as follows:
“ If Albert M. Sower shall, within a reasonable time after the decease of my said wife, Caroline A. Sower, express to my trustee a desire to accept said dwelling house and the lot of ground south of the same to-Guthbert street as a residence, he shall be allowed so to do upon the payment to my trustee of an annual rental of 300 dollars. If the said Albert M. Sower shall not so elect to occupy the said house and lot then any member of the Sower family bearing that surname shall be allowed to occupy the same as a residence, provided the person so electing shall pay to my trustee an annual rental therefor of 300 dollars, and shall pay all taxes, water rent, municipal or other assessments which may be levied upon the said premises and shall pay for all gas consumed upon the premises and shall make all necessary repairs thereto and shall produce to my said trustee or any one representing it receipts for all such payments.”

The appellant, Albert M. Sower, did elect to occupy the property mentioned, and he contends that under the provisions of the will the trustee should be directed to put the property in good condition for occupancy, and should set aside a sum of money sufficient to meet the taxes, water rent, gas bills, repairs, and municipal and other assessments on the property, so long as he, the said Albert M. Sower, shall continue to occupy it. The orphans’ court has decided against this contention, and holds that it was the intention of the testator to impose alike upon the nephew or any member of the Sower family who might elect to occupy the premises, the burden of making repairs, payment of gas bills, water rent and taxes, in addition to the payment of the nominal sum of $300 annual rental. It holds that Albert M. Sower merely had the first right of choice, as to the occupancy of the premises, but in no other way was he to be favored.

We agree with the construction adopted by the orphans’ court. As we view it, Albert M. Sower had an estate for life in the property, subject to the payment of the sum of $300 per annum to the trustee, and the only duty imposed upon the trustee in this respect is to receive the annual rental, and when the proper time comes, exercise the power of sale. The will contains no provision for the retention of funds to meet the charges against the property, nor does it contemplate the withholding of any part of the estate from the distribution provided for in the will. The language used is, If the said Albert M. Sower shall not so elect to occupy the said house and lot, then any member of the Sower family bearing that surname shall be allowed to occupy the same as a residence; ” then follows the provision that the person so electing shall pay the annual rental, all taxes, water rent, gas, repairs, etc.

The auditing judge points out that if “ the intention had been to confine the obligation to pay for repairs, taxes, gas bills, etc., to the person taking in the event of the nephew’s refusal, the obvious and natural mode of expression would have been ‘ provided that such person shall,’ etc.; but instead of this it is ' provided that the person so electing shall pay,’ etc., clearly implying that the person may be the nephew, if he elects,’ or the other one surnamed Sower, if he should not.” This interpretation is not only natural, but it is reasonaable. The fair rental value of the property is $1,200 per annum, and it is hardly conceivable that the testator, if he intended his nephew to pay nothing more than $300 per year, would anticipate that so advantageous an offer would be declined. On the other hand, it may have seemed to him quite possible that the cost of repairs, taxes, water rent, gas, etc., added to the stipulated rental, might cause the nephew to hesitate, and perhaps decline; and in that event, naturally enough, the, testator held out the same offer to others of the same family name. The conclusion reached by the orphans’ court is fully sustained by the reasoning of the auditing judge.

The assignments of error are overruled, the decree of the orphans’ court is affirmed, and this appeal is dismissed at the cost of appellant.

Mr. Chief Justice Mitchell,

dissenting:

The construction of the will adopted by the orphans’ court is clearly contrary to the grammatical construction of the testator’s words, and appears to me to be also contrary to his plain intent. He belonged to a family somewhat noted in the local annals of Philadelphia for a century and a half, and his will manifests his pride in the name and in the continuous occupation of the same property. His scheme of disposition was in accordance with this feeling. The house was given to his widow for life, she paying no rent; after her death to the favored relative, Albert Sower, he paying a rental of $300; if Albert should not occupy the house then the option to do so should go to “any member of the Sower family bearing that surname,” paying a rental of $300 and all taxes, water rents, etc. This is the grammatical construction and it accords with the actual intent. The draughtsman of the will, whether testator himself or another, was plainly an educated man, accustomed to the correct use of the English language. He expressed the classification of beneficiaries above indicated, clearly, put a full period after the gift to Albert, and attached the additional burden of taxes, etc., only to the other members of the Sower family who might take the place of Albert. Punctuation is not to control the manifest meaning of a sentence, but it is not to be disregarded lightly, especially in the case of a writer accustomed to its proper use. In the present case a full period is set aside, contrary to the grammatical requirements, and the plain intent of the language, and only in deference to a general intent, assumed, not from anything the testator said, but from what the court think he could not have meant. I would reverse this decree.

Fell, J., joins in this dissent.


author: Mr. Justice Fell,

text:
    Sanson’s Estate. Sanson’s Appeal.

      Insurance — Life insurance — Tontine insurance — Assignment of policy— Beneficiary — Husband and wife — Gift.
    A decedent having a policy of insurance on his life payable to his estate, made a voluntary assignment of it, in writing, to his wife. The assignment provided that if the insured survived the tontine period of fifteen years, the assignment should be void. The policy gave to the insured an option at the end of fifteen years to withdraw in cash the accumulated surplus apportioned by the company. This option was to be exercised by the insured without the consent of the beneficiary. It was exercised by the insured, and after the payment the policy and the original assignment remained in the custody of the decedent. There was testimony tending to show that, at the time the insured exercised his option and received the accumulated dividends from the company, he and his wife went together to the office of the company in pursuance of notice sent to both, that she there joined with him in signing the papers necessary to effect the option exercised; that the agent of the company told them, in reply to their inquiries, that the policy would continue in force and that she would remain the beneficiary; that this was what the decedent desired, and that it was the understanding and agreement between him and his wife at that time. Held, that no formal reassignment of the policy to the wife was necessary, and that after the death of her husband she was entitled to the proceeds of the policy.
    March 11, 1907:
    Wherever a person has the legal right to dispose of property and means to do so, the form of the instrument adopted for the purpose, if at law ineffectual, will be disregarded, and it will be reformed so as to make it effectual.
    Argued Jan. 17, 1907.
    Appeal, No. 149, Jan. T., 1906, by Aaron I. Sanson, Jr., from decree of O. C., Phila. Co., Oct. T., 1903, No. 100, dismissing exceptions to adjudication in estate of Aaron I. Sanson, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, J J.
    Affirmed.
    Exceptions to adjudication.
    The opinion of the Supreme Court states the case.
    The orphans’ court, in an opinion by IIanna, P. J., dismissed the exceptions to the adjudication of Penrose, J.

      Error assigned was in dismissing exceptions to adjudication.

      G. W. Pepper, with him A. W. Samson, for appellant.
    The evidence is insufficient that the,testator intended to continue the policy as a gift to his wife: Trough’s Est., 75 Pa. 115; Zimmerman v. Streeper, 75 Pa. 147; Waynesburg College’s App., 111 Pa. 130; Walsh’s App., 122 Pa. 177; Girard Trust Co. v. Mellor, 156 Pa. 579; Pringle v. Pringle, 59 Pa. 281; Bond v. Bunting, 78 Pa. 210.

      Charles F. Ziegler, for appellee.
    A reassignment was unnecessary : Malone’s Estate, 8 W. N. C. 179; Kulp v. March, 181 Pa. 627; Turner v. Warren, 160 Pa. 336; Lant’s App., 95 Pa. 279; Scott v. Dicksom, 108 Pa. 6.
   Opinion by

Mr. Justice Fell,

The question presented by this appeal is whether the sum of $10,000 paid by an assurance company on a policy on the life of the decedent should have been awarded by the orphans’ court to his widow or to his executor. They were the only parties in interest, and under their agreement the money had been paid by the company to the executor in order that the beneficial ownership might be determined on the settlement of his account.

The decedent in 1884 took out a tontine policy, which provided that at the end of fifteen years, unless the policy was sooner terminated by his death, the insured should have five options, the first of which and the one he exercised was “ To withdraw in cash the accumulated surplus apportioned by the company.” These options were personal to the insured and could be exercised by him without the consent of the beneficiary. The decedent’s first wife was the beneficiary named in the policy. Upon her death in 1889 the policy, by its terms, enured to his benefit. lie married the appellant in 1891, and in 1893 assigned to her the policy and all his rights thereunder, subject to its terms. In 1899 he exercised the option mentioned and received from the company $7,161, and continued the policy at reduced premiums. lie died in 1903. The assignment was made on a printed blank provided by the company and required by it in case of all assignments, and it contained a provision that, if the insured survived the tontine period, the assignment should be void. After the payment by the company the policy and the original assignment remained in the custody of the decedent’s agent, who had before taken charge of it. There was testimony tending to show that, at the time the insured exercised his option and received the accumulated dividends from the company, he and his wife went together to the office of the company, in pursuance of notice sent to both, that she there joined with him in signing the papers necessary to effect the option exercised; that the agent of the company told them in reply to their inquiries that the policy would continue in force and that she would remain the beneficiary; that this was what the decedent desired, and that it was the understanding and agreement between him and his wife at that time. It was found by the learned auditing judge that “ it was the understanding and agreement of the decedent that after he received the amount paid to him under the exercise of his tontine option the policy should ‘ continue ’ as an ordinary policy for $10,000 for and as the property of his wife. Their relations were, as they always had been, loving and affectionate ; the necessity that she should be in receipt of the money at his death was as great as when the assignment was made to her; the sole purpose of the condition was one affecting, and intended to affect, the company as between itself and persons whom it insured ; and this purpose had been fully accomplished, the decedent receiving, as the result of it, an amount nearly equalling the face of the policy. A reassignment was unnecessary: Malone’s Estate, 8 W. N. C. 179; Kulp v. Marsh, 181 Pa. 627, 635. The purpose of the condition having been accomplished, its consequences by way of divesting the interest of the wife might very naturally be waived by the husband; and the understanding that it ‘ should continue as it had been’ could in their minds have had no other meaning than that the interest of the wife continued ’ with it after the husband had exercised his option, just as it had previously existed; and, as already stated, the evidence shows that this was their agreement.”

There can be no doubt that the decedent and his wife understood that the limitation in the assignment was a requirement of the company to avoid complications at the end of the tontine period, when an option might be exercised, and that its purpose being ended, the policy would continue as it before was for the benefit of the wife. They believed that no new assignment was necessary and that nothing more need be done to give legal effect to the decedent’s intention to continue the beneficial ownership in her. What took place amounted to a renewal of the original gift and equity will consider as done what they understood as already done. “Wherever a person has the legal right to dispose of property and means to do so, the form of the instrument adopted for the purpose, if at law ineffectual, will be disregarded, and it will be reformed so as to make it effectual:” Lant’s Appeal, 95 Pa. 279.

The decree is affirmed.