text:
    Banning, Cooper & Company, Limited, v. Murphy, Appellant.

      Affidavit of defense — Practice, C. P. — Information and belief — Rules of court.

    1. Under the rules of the court of common pleas of Allegheny county, where the defendant makes his own affidavit of defense, and avers certain matters on information and belief, he must also aver his ability to prove such matters on the trial of the cause. Otherwise the affidavit is fatally defective.
    2. In an action to recover for the breach of a contract of sale, an allegation of fraud in the affidavit of defense sufficient to justify the defendant in rescinding the contract, must be specific in its averments. If not, the affidavit will be insufficient to prevent judgment.
    Argued Nov. 1, 1909.
    Appeal, No. 122, Oct. T., 1909, by defendant, from order of O. P. No. 3, Allegheny Co., Feb. T., 1909, No. 611, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Banning, Cooper & Company, Limited, v. P. H. Murphy.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Assumpsit for breach of contract of sale.
    Rule for judgment for want of a sufficient affidavit of defense.
    Evans, J., filed the following opinion:
    The plaintiff brings this action to recover damages for breach of a contract in writing executed between the plaintiff, Banning, Cooper & Company, Limited, and the Allegheny Valley Malleable Iron Company. The plaintiff alleged two contracts with the Allegheny Valley Malleable Iron Company, for the sale of pig iron, both dated May 28, 1907, and each for the sale of 1,500 tons of pig iron for the price of $24.40 per ton f. o. b. cars, New Kensington, Pa. That on or about February 11,1908, there was still undelivered of the two contracts 2,012 tons and 500 pounds of iron, and on that date the plaintiff demanded of the Allegheny Valley Malleable Iron Company, and also of the defendant, P. H. Murphy, who was its president, that directions for the time and shipments of this undelivered balance due under said contracts be given, and that the said corporation, the Allegheny Valley Malleable Iron Compahy, and the said defendant, P. H. Murphy, “neglected and refused to give said directions, and the said corporation and the said defendant notified the plaintiff not to ship any more iron under the said contracts, as the same would not be received.”
    Plaintiff further alleges in its statement of claim that it brought suit against the Allegheny Valley Malleable Iron Company for a breach of this contract, and “the said corporation then repudiated the said contract and by and with the approval and consent of the said P. H. Murphy, the defendant herein, claimed and alleged that the said P. H. Murphy had no authority from the corporation to make the said contracts, and that therefore the corporation was not liable on the contracts.”
    The plaintiff alleges as its measure of damages that at the date of the breach, the price of pig iron, as called for by the contracts, had fallen from $24.40 per ton f. o. b. cars, New Kensington, Pa., to $17.00 per ton f. o. b. cars, New Kensington, Pa.
    Defendant, in his affidavit of defense, admits the execution of the papers sued upon as the contracts between the parties, does not deny the allegation of plaintiff that it demanded instructions for' shipments, and that the corporation and the defendant both notified the plaintiff not to ship any more iron under the said contracts, as the same would not be received; does not deny that the price of iron had fallen on February 11, 1908, to $17.00 per ton f. o. b. cars, New Kensington; does not deny that the defense of the Allegheny Valley Malleable Iron Company to the plaintiff’s suit against it for damages to the effect that its president, P. H. Murphy, had no authority to make the contract, was made with the approval and consent and acquiescence of P. H. Murphy, and the further allegation on the part of the plaintiff that P. H. Murphy is the owner of all the capital stock of the Allegheny Valley Malleable Iron Company, and that no stock has ever been issued to any other person, and no other person has contributed anything whatever to its capital.
    In the third paragraph of defendant’s affidavit of defense he attempts to set up a contemporaneous parol agreement to vary the written agreement upon which suit is brought by the plaintiff, but he does not allege that-the oral agreement which he sets up was left out of the written contract by either fraud, accident or mistake. It is not necessary to cite authorities at this day to sustain the position that in order that a defendant may modify a written agreement by a contemporaneous parol agreement, he must allege and'prove that the parol agreement was left out of the writing by fraud, accident or mistake. But there is another defect in the allegation of the third paragraph of the defendant’s affidavit of defense. The paragraph reads: “Defendant is informed and believes and therefore avers,” etc. Rule 13 of this court reads as follows: “All affidavits required by these rules may be made by the party or in proper cases by his agent. All facts and statements which are within affiant’s knowledge shall be sworn or affirmed to be true, and all other facts and statements shall be sworn or affirmed to be true, as affiant is informed and believes and expects to be able. to prove on the trial of the cause.” It will be observed that the defendant alleges that he is informed and believes the allegations which he is about to make, but does not aver his ability to prove those allegations on the trial of the cause; and it is particularly important that this should be insisted upon where the character of proof is such as is required to vary a written instrument. This defect will be found in many of the other .paragraphs of the affidavit of defense, the defendant alleging that he is informed and believes, but not alleging that he expects to be able to prove the averments.
    The contract sued upon provides “strikes, differences with workmen, accidents to machinery or other contingencies beyond the control of the buyers or sellers to be sufficient excuse for any delay traceable to such cause;” and in the sixth paragraph of the affidavit of defense the defendant claims that the financial crisis precipitated in October of 1907 was such a contingency beyond his control as to afford sufficient excuse for his not accepting the iron in February, 1908. It is a very serious question if the defendant’s financial condition was one of the excuses contemplated by that contract. But even if it was, it was only a subject for delay, and not a reason for refusing, as defendant has admitted that he did refuse, to receive any more iron under that contract. While it might have been a cause for delay, it was no cause for rescinding the contract.
    Many of the allegations in the affidavit of defense are so vague and uncertain as to their meaning as not to permit of their enforcement. For instance, in the eighth paragraph, defendant denies that the plaintiff was at all times ready and willing to ship in accordance with the terms of the contract actually made. We may assume that the defendant meant in that allegation that the plaintiff was not willing to ship in accordance with the terms of the contract, as he is attempting now to allege that contract.
    In the twelfth paragraph of the affidavit of defense, Is the allegation of fraud on-the part of the plaintiff sufficient to justify the defendant in rescinding the contract? and if the allegations of that paragraph were sufficiently specific, there might be enough in it to allow the question to go to the jury. The contract sued upon specifies the quantity of silicon, sulphur, phosphorus and manganese, and provides that the shipper shall furnish analyses to accompany each car. Defendant alleges that it had no occasion to use the pig iron shipped until within a few months of the filing of the affidavit of defense, and that then the said Malleable Iron Company “investigated the pig iron already so received and paid for, and has found that the same does not come up to the requirements contained in said specifications; that it is not pig iron of the kind and character and quality purchased by the said Malleable Iron Company; that some of said iron contained less than 60 per cent and more than 1.80 per cent of silicon; that some of the same contains sulphur greatly in excess of .05 per cent,' and phosphorus greatly in excess of .20 per cent, and some also contains less than .50 per cent and in excess of .90 per cent of manganese. That said plaintiffs never complied with that portion of their contract which provides that the iron so shipped shall contain silicon as follows: One-third .60 per cent to one per cent, one-third one per cent to .40 per, cent, and one-third 1.40 per cent to 1.80 per cent.” How much of the iron was not of the kind and quality provided for in the contract the affidavit does not state. To what extent it varied in silicon, manganese, sulphur and phosphorus, the affidavit does not state. If there was one pig which did not come up to the standard in the slightest degree it would fulfill the allegations of the affidavit of defense, and no court would permit the rescission of a contract for so slight a variance as that, particularly where the defendant could be so readily compensated in damages for any injury which he suffered.
    As an illustration of the loose allegations in the affidavit of defense, in the ninth paragraph the defendant says: “It is further denied that the damages alleged to have been sustained by the plaintiff or any part thereof, were in fact sustained by him.” But that is not a denial of the allegation of the plaintiff that the market price of pig iron at the date of the breach of this agreement was $17.00 a ton f. o. b. cars, New Kensington.
    If we permit the defendant to state what the contract was, then he could allege that the plaintiff had suffered no damages.

      Error assigned was the order of the court.

      William A. Griffith, with him John M. Freeman and David E. Mitchell, for appellant.

      January 3, 1910:

      R. B. Petty, with him W. F. Petty, for appellee.
   Per Curiam,

The judgment is affirmed on the opinion of the learned judge of the common pleas.


source: Caselaw Access Project

author: Mr. Justice Brown,

license: Public Domain

text:
    Jordan v. Chambers, Appellant.

      Deed, — Title to coal — Separation of title — Adverse possession.

    1. A conveyance before the grantor has acquired title does not as against him vest title of itself by estoppel, but operates as an agreement to convey, which, when the title has been subsequently acquired, may be enforced in chancery.
    2. The principle of estoppel as between the grantor and grantee is that such acquisition inures to the benefit of the grantee, because the grantor is estopped to deny that he had the title in question.
    3. The estoppel of the grantor inures only to the benefit of his grantee, and those who were not privies or parties to the original conveyance can take no advantage of estoppel arising out of it.
    4. Where a person having adverse possession of land -makes a deed of the coal thereunder to three persons before the adverse possession has continued for the period of twenty-one years, the conveyance passes no title, and there is no severance of the coal; but if the holder of the adverse possession or his successor acquires title by the adverse possession for the statutory period he will hold the legal title to the coal in trust for the three grantees in the deed, and may be compelled by such grantees to execute to them a proper conveyance of the coal; but if the successor in the adverse possession, after the completion of the twenty-one years and after he has taken a deed for one-third of the coal from one of the grantees, sues in ejectment the holder of the record title, he is entitled to recover the whole fee in the land, and is not restricted merely to the surface and one-third of the coal.
    5. The outstanding equitable title to two-thirds of the coal is of no avail to the record owner as against the holder of the legal title to the surface and coal, entitled under that title to possession of both. The estoppel created by the deed to the coal avails only in favor of the parties and privies, and the record owner is not a party or privy to the deed.

      Ejectment — Parties—Judgment—Res adjudicata.

    6. Where the plaintiffs and the original defendant in an ejectment both claimed from a person who held the record title, and subsequently parties claiming the land by adverse possession are added as parties defendants in the ejectment, a verdict and judgment for the defendants, while conclusive against the plaintiffs, is not conclusive as between the defendant claiming by the record title and the defendants who claim by adverse possession.
    Argued Nov. 1, 1909.
    Appeal, No. 136, Oct. T., 1909, by defendant, from judgment of C. P. Nó. 3, Allegheny Co., Feb. T., 1904, No. 91,' on verdict for plaintiff in case of Pauline M. (Handel) Jordan and W. P. Jordan, her husband, in right of said wife v. John A. Chambers.
    Before Fell,' Brown, Mestrezat, Potter and Stewart, JJ.
    'Affirmed.
    Ejectment for land in Jefferson township. Before Kennedy, P. J.
    The facts are stated in the opinion of the Supreme Court.
    The court charged in part as follows:
    [There was a severance until 1880, when Herman Handel, having bought the surface, purchased one-third of the coal from one of these parties that had purchased from Robb. He purchased the share of Mr. Keenan. It was conveyed first to Mr. Jack, who reconveyed it to Mrs. Keenan, and then it was bought by Mr. Handel some time in 1880. The purchase ■of the surface by him was about September 11, and he purchased the coal by deed of September 27, 1880. Then, I instruct you, there was a union of the surface and the coal, the title of the surface and the coal, and that Herman Handel, being in possession of the surface, after this purchase, Was also in possession of the coal, holding it for himself and for these two other shares, for whom he would in law be trustee. So there was a union, or merger, a coalescing, as it has been' called in the argument, of the title to the coal and the surface at the time Mr. Handel bought the surface first and the coal afterwards. Herman Handel held the surface entire, and one-third of the coal for himself, and two-thirds for these other two purchasers or their heirs.] [7]
    Plaintiff presented this point:
    2. If the jury find that Pauline Handel Jordan, and those under whom she claims, held peaceable, adverse, notorious, continuous and exclusive possession of the land in dispute, under a claim of right for a period of more than twenty-one years, then their verdict must be for the plaintiff. Answer: This point is affirmed; I so instructed you in my general charge. [9]
    Defendant presented these points:
    3. If from the evidence the jury find that Nancy Large had title under the deed from Mary Jane Drake, of date December 9, 1863, and had been married to John R. Large before that date, and remained his wife until his death in 1902, she was not required to make entry for thirty years after she got her deed, to wit, before 1893; and if they further find that the plaintiff has not shown title by adverse possession for thirty years continuously before the defendant entered in 1897, the plaintiff is not entitled to recover, and the verdict should be for the defendant. Answer: This point is affirmed. You will observe, however, gentlemen, in that connection that Nancy Large does not seem to have asserted her title until she made this lease in 1897, so that the thirty years would expire, as is stated in tfre point, in 1893. There was that action of ejectment, which I have explained to you, and which resulted in a nonsuit. [10]
    4. Even if the jury should find that on and prior to August 16, 1870, when Robert Robb made his deed for the coal underlying the land in dispute to Hay, Woods and Keenan, the said Robb held title to the land in dispute, surface and coal, under the will of his mother Jane Robb, as claimed, then his said deed for the underlying coal worked a severance of the coal from the surface, and the two estates never again coalesced, under the evidence, until the defendant acquired title by the sheriff’s deed in 1898; and this being so, and there being no evidence that either the plaintiff or. any of those under whom she held ever entered upon actual possession of the coal to mine and remove it, the adverse occupancy of the surface alone by herself, and by those under whom she claims, gave to the grantees of the coal no right or title by adverse .possession to the underlying coal. Answer: Refused. [11]

      5. Under the pleadings and evidence in this cause, the only plaintiff entitled to recover, if there can be any recovery at all against the defendant, is Pauline M. (Handel) Jordan; and, under the pleadings and evidence, in no event can said plaintiff recover more than the surface of the tract in dispute and an undivided one-third interest in the underlying coal; she being estopped by her abstract of title filed in this case from claiming more. Answer: Refused. [12] ■
    6. Under the pleadings and evidence the verdict should be for the defendant. Answer: Refused. [13]
    Verdict and judgment for plaintiff. Defendant appealed.

      Errors assigned were (7, 9-13) above instructions, quoting them.

      James P. Patterson with him James H. Payne and Boyd Crumrine, for appellant.'
    Our contention that Pauline Handel Jordan, under the deeds for'the surface only, — assuming that adverse possession was taken under these deeds, — did not show title to more than the surface, and that her recovery could not be for more, is supported by ,the further consideration that by the express terms of these several deeds the coal was excepted, and that therefore the possession of those under whom the plaintiff claims the surface was a distinct possession from that of the coal: Caldwell v. Copeland, 37 Pa. 427; Armstrong v. Caldwell, 53 Pa. 284; Hawk v. Senseman, 6 S. & R. 21; De Haven v. Landell, 31 Pa. 120; Ament's Ex’r. v. Wolf, 33 Pa. 331.
    If we are right in our contention that the plaintiff, Pauline Handel ’Jordan, under deeds for the surface, followed by adverse possession under them for the statutory period, acquired title to the surface, without any claim upon the coal, we submit that the fact that these deeds for the coal were made is not evidence of any title in the grantees thereto, in the absence of evidence showing that they took adverse possession of the coal, claiming under these deeds. This position is supported by the authorities cited.
    The fact is undenied that the claim to the coal by those in. possession of the surface was begun, if at all, within the period required by the statute of limitations, to wit, September 27, 1880. This element itself disposes of the question whether or not the plaintiff is entitled to any part of the coal.
    We submit, that the entry upon the surface, under the deeds for the surface, by the respective grantees in these deeds, cannot in any manner aid the grantees under the deeds for the coal, no possession by them under said deeds having been shown: Hale v. Glidden, 10 N. H. 397.
    The owner of mineral rights under such land, holding by virtue of a reservation in a deed, is neither a tenant in common nor a joint tenant with the owner of the surface: Neill v. Lacy, 110 Pa. 294; Powell v. Lantzy, 173 Pa. 543.
    We submit that Pauline Handel Jordan, the only plaintiff in this case, cannot, in any event, recover more than the surface and one-third of the coal, and that the court erred in so instructing, and also in refusing defendant’s fifth point: Mobley v. Bruner, 59 Pa. 481.
    Pauline M. (Handel) Jordan, the sole plaintiff in this action at the time of trial, was concluded by the verdict and judgment in favor of the defendant Chambers, the appellant, on the former trial at No. 164, May Term, 1902, the judgment remaining unmodified and unreversed, and was thereby estopped from instituting the present action: McCall v. Neely, 3 Watts, 69; Burkhart v. Row, 4 Yeates, 134.

      Robert Woods Sutton, with him George C. Burgwin and George E. Shaw, for appellee.
    The deed of Robert Robb for the coal in 1870 to Hay, Woods and Keenan was ineffectual to create a severance of the legal title to the coal from that of the legal title to the surface, and therefore the legal title to the entire estate, coal and surface, is in the plaintiff and she may maintain ejectment for the land described in the writ: Schall v. R. R. Co., 35 Pa. 191; Chew v. Barnet, 11 S. & R. 389; Clark v. Martin, 49 Pa. 299; Steiner v. Baughman, 12 Pa. 106; McWilliams v. Nisly, 2 S. & R. 507; Burtners v. Keran, 24 Gratt. (Va.) 42; Miller v. Holman, 1 Grant, 243; Allen v. Allen, 45 Pa. 468; Waters’s App., 35 Pa. 523; Crunkelton v. Evert, 3 Yeates, 570; Del. & Hudson Canal Co. v. Hughes, 183 Pa. 66; Armstrong v. Caldwell, 53 Pa. 284.
    January 3, 1910:
    The verdict or judgment at No. 164, May Term, 1902, in the case of Bennett v. Chambers, was not admissible for the purpose of estopping plaintiff, nor for any other purpose whatever.
   Opinion by

Mr. Justice Brown,

The title to the land involved in this ejectment passed out of the commonwealth in 1817, and Mary Robb acquired title to it by deed dated September 15, 1832. After her death it was sold in 1837 by her administrator, the father of the appellant, under an order of the orphans’ court for the payment of debts, and the .title which the appellant claims, passed to him through sundry conveyances, starting with the deed from Mary Robb’s administrator to Hugh Toner and ending with that of the sheriff of Allegheny county to himself. Though an unbroken chain of title by deed was shown in the appellant, the proof submitted by the appellee, whose claim to title by adverse possession was sustained by the jury, was that from 1837 to 1897 — a period of sixty years — posssesion of the land had never been taken by the grantee of Mary Robb’s administrator nor by any subsequent grantee claiming under Toner.

The adverse possession upon which the appellee relied and recovered started in 1865. In that year — twenty-seven years after the sale by Mary Robb’s administrator — Jane Robb, the widow of Oliver Robb, a son of Mary Robb, was in possession of the farm, living on it and claiming it as her own. There was no title in her out of Mary Robb. By her last will and testament, admitted to probate October 12, 1869, Jane Robb devised the farm to her son Robert. On August 16, 1870, he executed a general warranty deed for the coal underlying the property to Thomas J. Keenan, Malcolm Hay and Robert Woods. In 1874 his interest in the farm, excepting the coal, was sold at sheriff’s sale, and, by various conveyances, it finally became vested in Herman Handel, to whom Thomas J. Keenan executed a deed for the one-third interest in the coal which Robert Robb had undertaken to convey to him in 1870. Upon the death of Herman Handel the property passed to the appellee in 1897 under proceedings in partition in the orphans’ court of Allegheny county. Under instructions free from error as to the measure of proof required from the appellee to sustain the title claimed to have been acquired by her by adverse possession, the jury, with ample evidence before them, found her title to be good.

It is most earnestly contended that, as the title to two-thirds of the coal is still outstanding in Malcolm Hay and Robert Woods, or their representatives, under the deed of 1870 from Robert Robb, a general verdict in favor of the plaintiff for the land, including the coal, ought not to be sustained. While at first blush this may seem plausible, it is clear, upon reflection, that it cannot avail the appellant. When Robert Robb conveyed the coal in 1870 he had no interest in it nor in the surface above it. In 1865 — five years before — Jane Robb, his mother, became the adverse occupant of the property, and for five years after her death he continued the adverse possession as her devisee, but during those ten years neither she nor he acquired any right in the property as against the real owner or owners, and against them nothing could have been acquired by adverse possession until the full statutory period of twenty-one years’ adverse possession had expired. During all those twenty-one years the trespassers could at any time have been driven from the land by the holders of the paper title. During that period there was no title at all in Jane Robb or in anyone claiming under her as the adverse occupier of the premises. In 1886, and not before, title by adverse possession became rooted in the land, but its roots went no deeper than 1886. “If, according to Lord Mansfield, the right of possession is taken away from the former owner, and according to Chief Justice Tilghman, it is acquired by the disseisor’s occupancy for the statutory period, Judge Gibson was strictly accurate when he said, in Graffius v. Tottenham, 1 W. & S. 494, that the effect of the statute was to transfer to the adverse occupant the title against which it has run. He added, ‘the title of the original owner is unaffected and untrammelled till the last moment, and when it is vested in the adverse occupant, by the completion of the statutory bar, the transfer has relation to nothing which preceded it; the instant of conception is the instant of birth:’ ” Woodward, J., in Schall et al. v. Williams Valley Railroad Co., 35 Pa. 191. By the deed from Robb to Keenan, Hay and Woods there was no severance of the coal. There could not have been, for the deed conveyed nothing to them. Neither these grantees nor anyone claiming under them at any time before or since the acquisition of the title by adverse possession in 1886 have made any attempt to sever the coal from the surface.

In 1886, when title by adverse possession vested in Handel, then in possession of the surface, not only it, but what was beneath it, vested in him; but when the title so vested in Mm he was in the same position as Robb would have been in 1886, if still in adverse possession of the property, claiming ownership in it by such possession. Having undertaken to convey the coal when he had no title to it, if confronted by his conveyance of the same at the time of his acquisition of title by adverse possession, he would have been estopped, as against his grantees, from denying their equitable ownership in the coal and could have been compelled to convey to them. “It is not to be doubted that a vendor who undertakes to sell a full title for a valuable consideration, when he has less than a fee simple, but afterwards acquires the fee, holds it in trust for Ms vendee, and will be decreed to convey it to his use:’’ Clark v. Martin, 49 Pa. 299. In Chew v. Barnet, 11 S. & R. 389, Judge James Wilson conveyed to Chew before he had title to the property. A conveyance was subsequently made to Mm by Ms vendors under articles of agreement with him. To secure the purchase money he executed a mortgage upon the property upon which it was subsequently sold at sheriff’s sale. When Chew, in an action of ejectment, sought to recover the property from the sheriff’s vendees, it was held that their title was paramount to Ms, and it was said by Gibson, J.: “What is the nature of the estate wMch Mr. Chew acquired by the conveyance from Judge Wilson? When that conveyance was executed, the legal title was in Jeremiah Parker, by patents from the commonwealth; and Judge Wilson having nothing but an equitable title under the articles, could convey nothing more; his deed, therefore, passed to Mr. Chew only an equitable title. But it is said, the subsequent conveyance from Jeremiah Parker to Judge Wilson inured to the benefit of Mr. Chew. It did so; but only in equity, and to entitle him to call for a conveyance from Judge Wilson; and not as vesting the title in him, of itself, as contended, by estoppel. The facts presented constitute the ordinary case of a conveyance before the grantor has acquired the title; in which the conveyance operates as an agreement to convey, which, when the title has been subsequently acquired, may be enforced in chancery.” Where one conveys with a general warranty land which he does not own at the time, but afterwards acquires the ownership of it, the principle of estoppel is that such acquisition inures to the benefit of the grantee, because the grantor is estopped to deny, against the terms of his warranty, that he had the title in question: Burtners v. Reran, 24 Gratt. 42. But the estoppel of the grantor, who subsequently acquires title for what he had undertaken to previously sell, inures only to the benefit of his grantee, who can compel a proper conveyance after the acquisition of title by the grantor. Those who were not privies or parties to the original conveyance can take no advantage of estoppel arising from it: Allen v. Allen, 45 Pa. 468. Estoppels may be by deed, but estoppels by deed avail only in favor of parties and privies: Sunderlin v. Struthers, 47 Pa. 411. To this appellant the estoppel of the appellee as against Robert Robb’s conveyance of the coal is unavailing, for he was no party or privy to it. The situation as it existed at the time this ejectment was brought was a title in the appellee for herself absolutely to the surface and one-third of the coal, and as trustee for Hay and Woods, or those claiming under them, for an equitable title to two-thirds. But this outstanding equitable title to a portion of the coal was of no avail to the appellant as against the appellee, the holder of the legal title to the surface and of the coal, entitled under that title to possession of both.

In 1902 an ejectment was brought for this land by Rebecca J. Bennett et al., claiming by descent from Mary Robb. The original defendant in the action was the present appellant, but the appellee and others, as claimants, were made co-defendants . The j ury were sworn as against all the defendants, and the verdict having been rendered in their favor, the further contention of the appellant is that his title is res adjudicata, in view of that verdict. All that need be said as to this is that the verdict was in favor of all the defendants but settled no title in dispute among themselves. Whether Chambers could assert title as against his codefendants, or any of them, remained, as the court properly said in overruling a motion for a new trial, to be settled in a controversy likely to arise between them. This is that controversy.

Nothing in the assignments of error calls for further discussion. They are all overruled and the judgment is affirmed.


author: Per Curiam,

text:
    Trinity Congregational Church v. Thompson.

      Trusts and trustees — Title to land — Security for debt — Church law.

    Where certain trustees and members of a church congregation purchase land for the use of the church, but take the title to the land in their own name without any agreement that the title shall be held as security for the payment of advances made by them to the church, except merely the promise of the pastor, the grantees in the deed will be decreed to convey the land to the church corporation free from any trust, but without prejudice to their right to enforce payment of the debts due them in connection with all other bona, fide creditors of the church.
    Argued Nov. 2, 1909.
    Appeal, No. 110, Oct. T., 1909, by Hiram S. Chinn, R. L. Wilson and W. H. S. Rodgers, from decree of C. P. No 1, Allegheny Co., June T., 1908, No. 684, on bill in equity in case of Trinity Congregational Church of Pittsburg and Robert Stevenson as Trustee v. Robert R. Thompson, V. M. Beckett, David A. James, Hampton Herbert, Hiram S. Chinn, R. L. Wilson and W. H. S. Rodgers.
    Before Fell, Brown, Potter and Stewart, JJ.
    Affirmed.

      Bill in equity to enforce a trust by a conveyance of real estate.
    Miller, J., specially presiding, filed the following opinion:
    The bill alleges that the defendants hold title to church property belonging to the plaintiff corporation and prays for a conveyance. The answer and cross bill, by three of the defendants, aver in substance, that they hold title to such church property lot individually at the request of the pastor and trustees of said church for said congregation, with an agreement that they are to be paid for any claims or moneys they have advanced in the purchase of the church lot and erection of a building thereon.
    In the cross bill they pray for a receiver, for an accounting and the precedent payment of their demands.
    The other defendants have filed no answer, and a decree pro confesso has been or may be taken against them.
    FINDINGS OF FACT.
    1. Prior to July 11, 1905, Rev. I. S. Lee, as pastor, and a large number of persons formerly connected with a church on Wylie avenue in this city, determined to form a new church organization, taking the name of Trinity African Methodist Church, and for that purpose he entered into negotiations for the purchase of a lot. A congregational meeting decided upon the purchase of a lot and erection of a church building; the board of trustees of said congregation, consisting of nine members, at a regular meeting following, on July 11, of that year, as shown by the minutes, resolved “that we buy the property under consideration at a price not more than $6,000.”
    2. On August 25, 1905, an agreement was made between Florence C. Miller of the one part and the Rev. I. S. Lee, R. R. Thompson, V. M. Beckett, David A. James, Hampton Herbert and Hiram S. Chinn, representing the church organization, of the other part, whereby for the consideration of $5,780, three lots of ground in F, C. Miller’s Plan of Lots, fronting sixty-four feet on Center avenue and extending back eighty-one feet, was contracted for; the deed was to be made to the parties of the second part, who were the pastor and a number of the trustees, in full payment of the consideration; all of which is shown by exhibit 9, made part hereof.
    3. The foregoing agreement was modified November 9, 1905, as shown by exhibit 10, made part hereof, wherein the time for payment was extended and the deed was to be made to whomever the Rev. I. S. Lee may in writing designate.
    Following this agreement an intermediate conveyance, was made to Charles Slagle, Esq., and later he’ by the direction of the pastor made title by deed dated June 24, 1906, to the foregoing five trustees, including R. L. Wilson and W. H. S. Rodgers, who were not members of the board of trustees. This deed is absolute in the defendants, free from any trust expressed therein, but it is admitted, and the fact is found, that they took title in trust for said church congregation.
    4. In the meanwhile and following this conveyance funds were raised toward the erection and furnishment of the present building thereon, principally through the efforts of the pastor, Rev. I. S. Lee. These funds were by way of donations, gifts, pledges and church collections.
    The defendants and other trustees and members advanced or loaned various sums- in addition to their voluntary gifts; these when liquidated are debts due them; the amount thereof is not necessary to establish in this proceeding.
    5. The church property as it stands is worth approximately $20,000. There are admitted debts, including mortgages, of about $10,000 against it, exclusive of the claims of the three defendants and others who advanced funds; the value of the property is more than sufficient to pay all just claims that may exist.
    6. There was no agreement by the congregation or act by the board of trustees or by any person with authority to bind the congregation that title should be held in these defendants absolutely, as security for the claims, or that said claims were preferred as against other honest creditors.
    7. The church organization is now incorporated under the name of the Trinity Congregational Church of Pittsburg, by decree of the court of common pleas No. 3 of this county, on February 15,1908; it is the legal successor in title and identity to what was formerly the unincorporated organization known as Trinity African Methodist Church and Trinity Congregational Church.
    CONCLUSIONS OF LAW.
    1. Even if the pastor, Rev. I. S. Lee, did state that these defendants or any of them should hold title for the security of moneys advanced by them or others, his individual promise was without authority or binding effect on this congregation and was invalid as against other creditors; no congregational or trustee ratification or authority for such promise exists.
    That these defendants may be creditors is apparent, and that they should be entitled to the payment of their just claims is a moral, as well as a legal obligation upon this church organization; but the only way they can be paid and this church get out of its difficulties is to place the title where it belongs, so that a legal conveyance may be made, if necessary, or a legal body have standing to raise funds pledging the church property therefor, for the purpose of paying its outstanding numerous obligations.
    2. A trust in the defendants for the plaintiff corporation having been found, and no valid agreement existing that they should hold title as security for the payment of any claims they may have, it follows that they must convey the title they hold to the plaintiff, Trinity Congregational Church of Pittsburg, a corporation, without prejudice, however, to their right to demand and enforce payment of any adjudicated debts due them in connection with all other bona fide creditors.
    3. A decree may be drawn directing the defendants and the others holding title with them to convey the land shown by the deed which they hold, to the plaintiff corporation, freed from any trust. The cross bill must be dismissed and the defendants in the original bill pay the costs.

      Error assigned was the decree of the court.

      G. W. Williams, with him N. 8.-Williams and Albert J. Edwards, for appellant.

      January 3, 1910:

      John D. Watson, with him J. Welfred Holmes and Haven V. Wolf, for appellees.
   Per Curiam,

The decree is affirmed on the findings of fact and conclusions of law by Judge Miller, specially presiding.


text:
    Cline v. Pittsburg Railways Company, Appellant.

      Negligence — Street railways — Passenger—Presumption of negligence.

    Where a passenger in a crowded summer car stands between two of the cross seats and against the guard rail of one side of the car, and by a sudden movement of the car the passenger’s head is thrown beyond the guard rail and is struck by a car on the other track, but there is no injury to the car in which the passenger is riding, no presumption of negligence on the part of the company arises from the mere happening of the accident. The burden is upon the plaintiff to prove negligence, and he may do so, in a way sufficient to carry the case to the jury, by showing that the car was improperly and unsafely run in passing over a curve, resulting in a sudden lurch or jerk which threw the passenger’s head beyond the guard rail at a time when the other car was passing.
    Argued Nov. 2, 1909.
    Appeal, No. 157, Oct. T., 1909, by defendant, from judgment of C. P. No. 4, Allegheny Co., Fourth Term, 1907, No. 139, on verdict for plaintiff in case of George J. Cline v. Pittsburg Railways Company.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Carnahan, J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $11,938. Defendant appealed.

      Errors assigned were (1) portion of charge quoted in the opinion of the Supreme Court; (2) refusal of binding instructions for defendant and (3) refusal to enter judgment for defendant non obstante veredicto.
    January 3, 1910:

      James C. Gray, with him Clarence Burleigh and William A. Challener, for appellant.
    The court below, in charging the jury, put the burden of disproving negligence on the appellant company. This, we do not think, is the law. The burden of establishing the negligence in this case, is on the appellee, and the testimony of the appellee, as to the manner in which the accident happened, does not change the rule. This is not a case where the injury complained of resulted from the breaking of machinery, a collision, derailment of. car, or something improper or unsafe, in the conduct of the business, or in the appliance of transportation: Farley v. Traction Co., 132 Pa. 58; Herstine v. Lehigh Valley R. R. Co., 151 Pa. 244; Dennis v. R. R. Co., 165 Pa. 624; Thomas v. Phila. & Reading R. R. Co., 148 Pa. 180.

      Rody P. Marshall, with him Thos. M. Marshall, for appellee.
    —That additional care and precaution must be exercised when a car is crowded in order that the passengers may be safely carried to their destination is decided in the case of McCaw v. Traction Co., 205 Pa. 271.
    The charge of the court must be interpreted as a whole: Com. v. Johnson, 133 Pa. 293.
    If so interpreted it is a correct exposition of the law and an adequate and impartial presentation of the case it will be sustained, although portions of it, torn from their proper connection, may suggest error.
    This case is on all fours with the case of McCloskey v. R. R. Co., 156 Pa. 254.
   Opinion by

Mr. Justice Brown,

The appellee boarded a car of the appellant on the evening of May 26, 1907. He was not able to get a seat and stood between two of the cross seats up against the guard rail on the left side of the car, holding on to an upright post with his left hand and to the seat in front of him with his right. The car was so crowded that a friend stood between him and the seat in front of him, encircled by his arms. As the car was passing over a curve it gave, according to the testimony of the plaintiff and one of his witnesses, a sudden lurch or jerk, throwing his head beyond the guard rail just as a car on the adjoining track was passing in an opposite direction. That car struck him, and this suit is for the recovery of damages for the injuries sustained. There is no evidence that the car was running at a high rate of speed, the testimony of plaintiff’s witnesses being that it was running at a good rate. From testimony offered by the appellant, it seems that the accident happened on a straight track and was due to the negligence of the appellee in sitting on the cross bar with his head projecting out far enough to come in contact with the passing car, and the jury were instructed that, if this was the situation, there could be no recovery.

After the appellee was allowed to become a passenger of the appellant on its crowded car, and he remained standing between two of the cross seats, with no part of his body extended beyond the cross bar, he was doing all that he could as a passenger under the circumstances, and the duty of the company in transporting him was to exercise the highest degree of care for his safety. If injury had befallen him as the result of an accident due to the breaking of machinery, collision, derailment of cars or something improper or unsafe in the conduct of the business, or in the appliances of transportation, there would be a presumption of negligence on the part of the common carrier, and the burden would be upon it to show that the injury was in no way the result of its negligence: Thomas v. Phila. & Reading R. R. Co., 148 Pa. 180. Here the only negligence of the defendant complained of is the sudden jerk or lurching of the car as it was passing over a curve. Nothing happened to the car itself. It went on after the injured passenger had been removed, just as if nothing had happened. Whether the car in passing the curve was properly operated by the motorman was'for the jury, but, under the court’s instructions, complained of in the first assignment, the mere happening of the accident raised a presumption of negligence, and the burden was cast upon the defendant to disprove it. The instruction was: “You will understand that when an accident happens, such as described by the plaintiff, the burden is put on the defendant company to explain away the charge of negligence. It says there was no negligence and could not have been any negligence, because there-is not any evidence here that the track was not in good condition, and because the evidence indicates that the car ivas not running more than five or six miles an hour at the time, and because it was a straight track.” This was error. If the car was moving at a proper and safe rate of speed in passing over the curve, there was no act of negligence on the part of the appellant’s employee to which the jerk or lurch can be attributed. The burden was, therefore, upon the plaintiff to show that the car had been run at an improper and .unsafe rate of speed, which was responsible for throwing his body over the guard rail. Cars when passing from a straight line to a curve, are always more or less jerky, but if a jerk is inevitable at a proper and safe rate of speed, a common carrier is not responsible for exceptional injuries resulting from it. Its cars must continue to run on the curve as well as on the straight line, its only duty being to run them at a proper and safe rate of speed over the curve. Did this appellant do so in the present case? That was the question for the jury’s consideration, and before the appellee can recover there- must be a finding that the car had not been safely and properly run.

That the instruction complained of was error seems to be admitted by counsel for appellee, for the burden of their argument is that it must not be considered standing alone, as, from other portions of the charge, it clearly appears that the court submitted to the jury the question of defendant’s negligence. The charge, however, may be searched in vain for a single word of instruction that the burden was upon the plaintiff to establish the negligence of the defendant, and, from the quoted portion, the only inference to be drawn by the jury was that the mere happening of the accident made out a prima facie case for the plaintiff and cast the burden upon the defendant of disproving negligence. No burden was upon it, in view of the character of the accident, until it was first shown that the accident was the direct result of negligence. Among the cases requiring a reversal is Herstine v. Lehigh Valley R. R. Co., 151 Pa. 244. In that case the plaintiff, at the time of the alleged injury, was a passenger upon one of the defendant’s trains. It was standing upon a track a short distance below the station, waiting for another car to be attached to it. This car, as the plaintiff alleged, was run out of a siding nearby and allowed to drop by gravity down to and against the rear end of the train with such violence that he and his wife were thrown forward from their seats against the seat in front of them and his spine was seriously and permanently injured by the wrench given him by the impact of the descending car. The trial judge instructed the jury, in substance, that the rule of Laing v. Colder, 8 Pa. 479, controlled the case, and that “from the mere happening of an injurious accident a presumption of neglect arises, prima facie, and throws the onus of showing that it did not exist on the carrier.” In reversing the judgment for the plaintiff we said: “This was misleading. There was no allegation that any accident had occurred to the train,'or to any of the instruments or appliances of transportation. All that was alleged was that in the performance of the duty of coupling an additional car to the train, the defendant’s employees had negligently permitted the car to strike the train with more violence than was necessary to move the springs and effect the coupling. This was stoutly denied by the defendants and by the persons in charge of the car and the train at the time. AVhether it was so or not was the subject of controversy, the primary question of fact for the jury to determine, since the plaintiff was left without a cause of action if the coupling was made in a proper manner. Upon filáis question the burden of establishing the negligence was on the plaintiff. There was no legal presumption arising from the facts of this case to shift the burden of proof. It it now well settled that the rule of Laing v. Colder is applicable to cases where a passenger is injured in, or because of, an accident happening to the train, boat or other means of transportation.

“The reason of the rule in such cases is that a contract to carry is, within the understanding of both parties, a contract to carry safely; and a breach of this contract by reason of the failure or insufficiency of any of the means provided for the carriage puts the carrier upon the defensive. The construction of its roads, cars and boats, and their management and care, are subjects peculiarly within the knowledge of the carrier, and with which the passenger has no means of becoming familiar. When an accident occurs, therefore, the presumption is that it is due to the want of care in construction, repair or management, and the burden of showing its own freedom from fault is on the carrier. But an accident to a passenger while about the premises of the carrier raises no such presumption: Hayman v. Penna. Railroad Co., 118 Pa. 508; nor does an accident befalling a passenger while on board a train and in the course of his journey, unless it is connected in some way with the means of transportation: McKinney v. The Penna. Railroad Co., 124 Pa. 462. Where the injury is chargeable to the manner of construction of a car the rule does not apply if the accident is to the passenger, and not to the car: Farley v. Traction Co., 132 Pa. 58.”

The first assignment is sustained and the judgment reversed with a venire facias de novo.


author: Mr. Justice Elkin,

text:
    Siegwarth’s Estate.

      Trusts and trustees — Spendthrift trust — Assignment by cestui que trust.

    Where testatrix gives a share of her estate to her executor to pay the income therefrom to her son, “but no part of the principal of said estate is to be given to my said son for five years after my death, and then only when in the judgment of my executor” he shall prove himself “to be entirely competent and qualified to take proper care of same,” the son cannot assign or sell such share within five years from the death of the testatrix, and if he attempts to do so, his assignee or vendee takes no valid title.
    Argued Nov. 2, 1909.
    Appeal, No. 196, Oct. T., 1909, by J. Henry Long, from decree of O. C. Allegheny Co,, Sept. T., 1906, No. 149, dismissing petition for an account in Estate of Margaretha Siegwarth, deceased.
    January 3, 1910:
    Before Fell, Brown, Mestrezat, Potter, Elicin and Stewart, JJ.
    Affirmed.
    Petition for an account.
    From the record it appeared that the petitioner had purchased from William Siegwarth a three-quarters interest in his share of the estate of his mother, Margaretha Siegwarth, within five years from the latter's death. The portion of the will of Mrs. Siegwarth material to the issue is as follows:
    “In respect to the share, part or portion of my estate, given to my sons Philip Siegwarth and William Siegwarth, I direct that the same be held by my executor, hereinafter named in trust for my said sons Philip Siegwarth and William Siegwarth, the income and clear annual profit arising from the interest or share hereby given is to be paid to my said sons Philip. Siegwarth and William Siegwarth, but no part of the principal of said estate is to be given to my said sons Philip Siegwarth and William Siegwarth, for five years after my death, and then only when in the judgment of my executor, they shall have proven themselves to be entirely competent and qualified to take proper care of same, at which time the said trustee shall pay the same over to my said sons Philip Siegwarth and William Siegwarth, and in the event of the death of either of my said sons Philip or William Siegwarth, without issue, then their share or shares shall revert back to my estate, and shall go to and be divided among- my remaining heirs.”
    The court dismissed -the petition.

      Error assigned was the decree of the court.

      W. A. Hudson, for appellant.

      B. S. Martin, with him Jere Carney, for appellee.
   Opinion by

Mr. Justice Elkin,

The appellant who is the assignee of the legatee filed a petition in the court below asking for an accounting by the trustee of the cestui que trust treating his share of the estate as absolute while in fact the executor holds it as part of the estate of the testatrix and is exercising supervision over it under the directions of the will. In the consideration of this case it must be borne in mind that we are dealing primarily with the estate of the testatrix and only secondarily with the share set apart for the benefit of her son who has undertaken to make an assignment of his interest to appellant. The estate belonged to the mother, and she could dispose of it as she chose and in any manner not unlawful. The son only took what his mother gave him and upon such conditions and restraints as she thought proper to impose. We agree with the views expressed by the learned court below wherein it is held that irrespective of the character of the estate in William there is seated upon it an active trust at least for a period of five years and may be longer, and inasmuch as the five-year period has not yet expired he has not come into possession of his share which is still held by the executor in trust for the uses and purposes stated in the will. The duties of the executor with respect to the trust estate are active and continuing during the trust period and are being performed as the will directs. If this appeal be sustained the intention of the testatrix to safeguard her benefaction against the improvidence or incompetency of the beneficiary will be defeated. This should not be allowed unless positive and imperative rules of law so require. We think it is not necessary to adopt a rule of construction the result of which will be to defeat the plain intention of the testatrix as expressed in the will. In this proceeding it is not necessary to consider or determine the kind and character of the. estate given to William because the time has not yet arrived either for himself or for his assignee to demand that the estate be turned over to the person or persons ultimately entitled to the use and enjoyment of it. It is held in trust for the benefit of William as the will provides, and during that period the hands of all parties are tied so that the corpus of the trust estate at least may not be disturbed, and since the income was intended for the personal use of the son and the trust being in its nature spendthrift, he should not be permitted to barter away what was given for his benefit before the time fixed for vesting the absolute estate in him either by the lapse of time or by his proving himself worthy to receive it as the testatrix directed. The petitioner has no standing to demand ,an accounting, and we find no error in the disposition made of the case by the learned court below.

Decree affirmed at the cost of appellant. ■


author: Mr. Justice Mestrezat,

text:
    Rahm's Estate.

      Judgment — Collateral attack — Nonresponsive pleadings — Orphans’ court.

    1. A judgment is void and may be attacked collaterally where it is not responsive to .the issues tendered by the pleadings; but where the record is amended, or considered as amended by the parties so as to include other issues than those presented by the original pleadings, the court may determine the issues thus raised. In such case if the matter in controversy is litigated and the complaining party has been present or has been given an opportunity to be heard, the court has jurisdiction and a judgment is valid.
    2. The above rule applies to a decree of the orphans’ court in an audit of a deceased trustee’s estate awarding to the substituted trustee the corpus of the trust funds, and further directing that the future income should be paid, not to the cestui que trust as the will directed, but to the estate of the deceased trustee under an equitable assignment, where it appears that the claimant cestui que trust secured two continuances of the audit, that he admitted to the accountant that he had a claim against the estate, that he was personally in court at the audit, and that he was notified by the court through his counsel that the right to the income of the trust fund would be adjudicated.
    Argued Nov. 2, 1909.
    Appeal, No. 197, Oct. T., 1909, by Edward Rahm, Jr., from decree of O. C. Allegheny Co., Oct. T., 1908, No. 139, dismissing petition to declare void a previous decree of the court in the Estate of Edward Rahm, Sr., deceased.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.

      Petition to declare void a previous decree of the orphans’ court and to enjoin payments thereunder. Before Miller, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was decree dismissing the petition.'

      Henry A. Davis, with him Wallace & Watson, for appellant.
    A court may set aside its own void decree and is bound to do so when, in any proceeding, the attention of the court is called to the fact that it had no jurisdiction to enter the decree in question: Phila. v. Jenkins, 162 Pa. 451.
    The decree is void because the court had no jurisdiction over the subject-matter nor over the person of petitioner: Wall v. Wall, 123 Pa. 545.
    The court had no jurisdiction over the subject-matter because the only issue before the court at the audit in the Hopkins estate was the distribution of the assets in the hands of the ancillary administrator: Munday v. Vail, 34 N. J. L. 418; Spoors v. Coen, 44 Ohio, 497; White’s Est., 2 W. N. C. 383.

      Jesse T. Lazear, with him H. V. Blaxter, for appellee.—
    Where the share of one who is apparently entitled is claimed by another, such claim must be established in the proceedings for distribution, as it must be there established, so it may be there impugned: McGettrick’s App., 98 Pa. 9; Bridaham’s App., 1 Pennypacker, 262; Moore’s Est., 211 Pa. 338; Woodward’s App., 38 Pa. 322.
    Having notice of the proceedings, the appellant cannot come in later to have the same reviewed: Johnston’s App., 4 W. N. C. 80; Otterson v. Middleton, 102 Pa. 78; App v. Dreisbach, 2 Rawle, 287; Yocum v. Commercial Bank, 195 Pa. 411.
    Appellant was a party to the proceedings: Alexander’s Est., 214 Pa. 369.
    The appellant had the legal right to release or assign his interest in his father’s estate, and such assignment will be protected in equity: Power’s App., 63 Pa. 443; East Lewisburg Lumber, etc., Co. v. Marsh, 91 Pa. 96; Jackson’s Est., 203 Pa. 33; Moss v. Cohen, 158 N. Y. 240 (53 N. E. Repr. 8).

      January 3, 1910:
   Opinion by

Mr. Justice Mestrezat,

The Fidelity Title & Trust Company filed its first and final account as ancillary administrator of the estate of James H. Hopkins, deceased, at No. 68, October Term, 1905, of the orphans’ court of Allegheny county. The account came before the court for audit on October 17, 1905, and at the instance of counsel representing Edward Rahm, Jr., distribution was suspended for two weeks. On December 5, 1905, Rahm presented a petition to the court asking the distribution to be further postponed until after the hearing in the estate of Virginia Rahm, deceased, to which, he averred, that James H. Hopkins was largely indebted. The audit was postponed until January, 1908, when the hearing was resumed.

On January 20, 1908, the orphans’ court entered a decree of distribution in the Hopkins estate awarding the balance for distribution in the hands of the ancillary administrator to the domiciliary administrator at Washington, D. C. On January 22, 1908, the Guarantee Title & Trust Company, administrator d. b. n. c. t. a, of the estate of Edward Rahm, deceased, presented its petition to the court, averring, inter alia, that its decedent had devised to his sister, Louisa Rahm, the interest on $3,000 during her lifetime; and directed that when his son, Edward Rahm, should reach the age of twenty-eight years, all of his share of the .testator’s estate should be paid over to him except the sum of $20,000, which sum should be held by the executors for the heirs of Edward at his death, the interest derived from said sum to be paid to Edward by the executor semiannually during his life. It was further averred in the petition that James H. Hopkins was the executor of the will of Edward Rahm, deceased, that he had died June 17, 1904, a resident of the city of Washington, D. C., and that his administrator was the National Safe Deposit, Savings & Trust Company of Washington, and the Fidelity Title & Trust Company of Pittsburg was the ancillary administrator; that the account of the ancillary administrator had been filed showing a balance for distribution which was claimed by the domiciliary administrator. It was further averred that Hopkins’ ancillary administrator had not charged itself in the account filed with the $20,000 and $3,000, trust funds, nor the income accrued thereon and not paid to the beneficiaries under the will. The petition prayed that the ancillary administrator be required to file a supplemental account showing the administration of the trust funds, and that the funds shown to be in its hands be paid to the petitioner. A citation was awarded as prayed for. An answer was filed by the Fidelity Title & Trust Company, the ancillary administrator of James H. Hopkins, deceased, in which, inter alia, it was denied that the administrator of the estate of Edward Rahm, deceased, was entitled to the trust funds named in the petition, either principal or interest; and it was averred “that the most that could be required of the respondent would be that security should be given for the payment of the $20,000 upon the death of Edward Rahm to those persons who would then be his heirs, and for the payment of interest upon the $3,000 during the life of Louisa Rahm, and that respondent should not be liable for any interest upon the said $20,000 during the life of the said Edward Rahm, nor at any time liable for the payment of any portion of the $3,000 from which Louisa Rahm is entitled to the interest.”

The citation was heard upon petition, answer and testimony. A supplemental account was filed, and on May 22, 1908, the court entered a decree of distribution in the audit awarding to the Guarantee Title & Trust Company, administrator and trustee of Edward Rahm, deceased, the $20,000, and directed the income thereof during the life of Edward Rahm, Jr., to be paid to the ancillary administrator of the estate of James H. Hopkins, deceased, and the principal at the death of Edward Rahm, Jr., to be paid to his heirs as directed in the will; and awarded to Rahm’s administrator and trustee the $3,000, and directed the income thereof to be paid to Louisa Rahm during her life, and at her death the principal be paid to the legal representatives of the estate of James H. Hopkins, deceased.

Edward Rahm, Jr., presented his petition to the orphans’ court, October 13, 1908, reciting, inter alia, the fact of the bequests of the $20,000 and $3,000, averred that the court was without jurisdiction to adjudicate the disposition of the future income arising upon said trust funds and the disposition of the $3,000 after the death of Louisa Rahm, and prayed for a rule on the trustee of the will of Edward Rahm, deceased, and on the ancillary administrator of the estate of James H. Hopkins, deceased, to show cause why the provisions of the decree directing the payment of the income arising from the fund of $20,000 during the life of Edward Rahm to the said ancillary administrator, and the payment of the principal of the $3,000 after the death of Louisa Rahm to the ancillary administrator should not be declared void and of no effect. A citation was awarded to which the ancillary administrator filed an answer which set forth at length the reasons for sustaining the decree and why the court should refuse to declare it void. Accompanying the answers were copies of two releases given to James H. Hopkins, one signed by Edward Rahm on April 9,1890, and the other, on January 12, 1900, by which Rahm acknowledged a full and satisfactory settlement with Hopkins, the executor of his father’s estate, and that he had received the full amount coming to him from the estate; also admitting that the executor had paid over to him the amounts directed by the will to be given to Rahm’s heirs on condition that Rahm would indemnify him for so doing, and therein agreed to indemnify Hopkins against any and all liability to any person or persons by reason of said payment.

On May 4, 1909, the court entered a decree dismissing Rahm’s petition, and from that decree he has taken this appeal.

The appellant contends the court erred in holding that it had jurisdiction, in the audit in the Hopkins estate, to adjudicate questions relating to the payment of the future income, and disposition of the principal, of the trust funds belonging to the estate of Edward Rahm, Sr., deceased; and in holding that it had jurisdiction to dispose of the income, not accrued and presently in court for distribution, but to be derived in the future from trust funds in the hands of the substituted trustee.

We fully concur with the contention of the learned counsel for the appellant that a judgment is void and may be attacked collaterally where it is not responsive to the issues tendered by the pleadings. That doctrine is sustained by both American and English authorities. The issues to be tried before the court in any proceeding are those made up by the pleadings and disclosed by the record, and the judgment thereon is only upon those issues. It is equally true, however, that where the record is amended, or considered as amended by the parties, so as to include other issues than those presented by the original pleadings, the court may determine the. issues thus raised. In such case, if the matter in controversy is litigated and the complaining party has been present or has been given an opportunity to be heard, the court has jurisdiction and the judgment is valid: Reynolds v. Stockton, 140 U. S. 254. In delivering the opinion in this case, Mr. Justice Brewer said: “Nor are we concerned with the question as to the rule which obtains in a case in which, while the matter determined was not, in fact, put in issue by the pleadings, it is apparent from the record that the defeated party was present at the trial and-actually litigated that matter. In such a case, the proposition so often affirmed, that that is to be considered as done which ought to have been done, may have weight, and the amendment which ought to have been made to conform the pleadings to the evidence may be treated as having been made. Here there was no appearance after the filing of the answer, and no participation in the trial or other proceedings.”

In his opinion the learned judge of the orphans’ court says: “This petitioner was in court during the hearings in the audit of the Hopkins estate. His petition is of record December 7, 1905, asking for postponement of distribution, and the same counsel who represents him now represented all the interests then, and were repeatedly notified by the court that the question of income on the Rahm claim would be determined in the Hopkins audit.”

It will be observed that the question of the right to the trust funds and the interest thereon was distinctly raised in the answer filed by the ancillary administrator of James H. Hopkins, deceased, to the petition of Edward Rahm’s administrator. The answer denied the right of Edward Rahm to the income on the $20,000 and his right to the corpus of the $3,000 at the death of Louisa Rahm. The pleadings therefore presented the question for consideration in the distribution of the Hopkins estate, and there can be no doubt that it was clearly within the jurisdiction of the orphans’ court to determine the question. Rahm’s substituted trustee claimed that under Rahm’s will the trust funds should be paid to it, the corpus as well as the income to be distributed by it. Hopkins’s administrator denied the right of the trustee to collect the income on the $20,000 and make application of it, or to pay the $3,000 to Edward Rahm after the death of the life legatee. In the decree, the orphans’ court passed upon that question which was clearly before it and within its jurisdiction. If it was erroneously decided against Edward Rahm, Jr., or against the trustee of Edward Rahm, Sr., the remedy was by an appeal to this court.

The fund for distribution was in the hands of the administrator of Hopkins, who had been the original trustee under Rahm’s will. This is not an appeal by the substituted trustee, but by Edward Rahm, Jr., who claims that the money in the hands of Hopkins’s administrator belonging to Rahm’s estate should have been paid to the substituted trustee. This is a contest, therefore, between Edward Rahm, Jr., the legatee under his father’s will, and the ancillary administrator of James H. Hopkins, deceased, for the legacy in question. The court awarded to the substituted trustee the corpus of the trust funds,' but directed that the income from the $20,000 and the remainder after the life estate in the $3,000, the legacy bequeathed to Edward Rahm, Jr., should be paid to Hopkins’s administrator. It appears that by mistake Hopkins paid to Edward Rahm, Jr., the $20,000. He took the releases, above referred to, which acknowledged the receipt by Edward Rahm, Jr., of the amounts directed to be paid him by the will of his father, released Hopkins from all other liability or accountability to him on account of the estate, and agreed to indemnify Hopkins against liability by reason of the payment. This must be treated as an equitable assignment of Rahm’s interest in his father’s estate to Hopkins. The latter cannot retain the $20,000 against the heirs of Edward Rahm, Jr., but he is clearly entitled to the income on the $20,000 and the corpus of the $3,000 after the life estate of Louisa Rahm therein. Edward Rahm, Sr., left two sons who would have inherited the $3,000, as he died intestate as to the remainder of that fund, but the other son having died, the entire fund would go to Edward, Jr. Having received from Hopkins, as trustee, $20,000 of his father’s estate, which he was not entitled to, and for which Hopkins was responsible, it is but equitable and just that Edward Rahm, Jr., should be compelled to refund the money to the extent that Hopkins’s administrator has funds in his hands belonging to Edward. The orphans’ court is a court of equity and it clearly has the right to enforce the repayment of the $20,000 to Hopkins so far as the funds for distribution will permit.

As found by the orphans’ court, Edward Rahm, Jr., had full knowledge of the audit of the Hopkins account. He appeared by counsel in 1905 and obtained a postponement of the audit proceedings. Subsequently, on his petition, a further postponement was had in the audit for more than two years. He intimated to the accountant that he had a claim against the estate. He was personally present in court at the audit, as admitted by counsel. The court notified his counsel that the right to the income of the trust fund would be adjudicated.

It is therefore clear, we think, that Edward Rahm, Jr., had notice of the audit, was present during at least a part of it, and knew that the fund, which he now claims, was a subject-matter in controversy, raised by the pleadings, and would be determined by the court. He therefore had an opportunity to be heard and is bound by the decree: Johnston’s App., 4 W. N. C. 80.

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


text:
    Mulert, Appellant, v. Real Estate Trust Company of Pittsburg.

      Landlord and tenant — Principal and surety — Entrance to relet — Release of surely.

    Where the lease of a large building provides that in case of default the lessor may re-enter and relet the premises or any part thereof for the unexpired term and receive the rentals until the sums owing by the lessee have been satisfied, a surety of the lessee who has stipulated that he shall only be liable for rents after the remedies provided by the lease have been exhausted, is not released from liability by reason of the lessor entering upon the premises, dividing the first floor into compartments by partitions, and reletting such compartments to different parties.
    Argued Nov. 2, 1909.
    Appeal, No. 198, Oct. T., 1909, by plaintiff, from decree of C. P. No. 2, Allegheny Co., April T., 1909, No. 965, dismissing bill in equity in case of Justus Mulert, Trustee in Bankruptcy of Harry Davis, Bankrupt, v. Real Estate Trust Company of Pittsburg and Mary McClure.
    Before Fell, Brown, Mestrezat, Potter, Elicin and Stewart, JJ.
    Affirmed.
    Bill in equity to declare a surety released.
    Shafer, J., filed an opinion, which apart from certain matters relating to the defendant, the Real Estate Trust Company, was as follows:
    FINDINGS OF FACT.
    The bill is by a trustee in bankruptcy for a decree that the Real Estate Trust Company has been released as surety for the bankrupt to Mrs. McClure, one of the defendants.
    1. On February 15, 1906, Mrs. Mary McClure, one of the defendants, by written lease demised to Harry Davis the lot of ground at the southwest corner of Fifth avenue and Smith-field street, fronting about twenty feet on Smithfield street and extending back along Fifth avenue sixty feet, at an annual rental of $24,000 payable monthly in advance, for the term of thirteen years from April 1, 1906.

      2. At the time of this demise there was erected on the lot a building which covered the whole lot, consisting of four stories and a basement, with access to the basement by an areaway on Fifth avenue, the whole of the first floor being in one storeroom, and the basement without partitions.
    3. The lease allowed the tenant to remodel or alter the building during the term, allowed reletting, and provided that in addition to all remedies given by law, including the right of distress, in case the rent should be in arrears for thirty days, the lessor should have the right “1st. To enter the premises and, as agent of tenant, relet the premises, or any part or parts thereof, from time to time during and for any unexpired portion of the term and receive and retain the rent therefor until all the sums owing to lessor under this agreement then due or thereafter due, shall have been satisfied,” and further, a right to forfeit and terminate the lease.
    4. The Real Estate Trust Company, one of the defendants, by paper printed as exhibit “B” of the bill, became surety to Mrs. McClure for the rent of Harry Davis under this lease up to the sum of $48,000, the surety agreeing to pay the rent which should be due, “after the lessor has exhausted the remedies provided in said lease for the collection of same.”
    5. In order to indemnify the Real Estate Trust Company for this suretyship, Davis made a special deposit with the Real Estate Trust Company of $25,000 on which he was to receive interest, the terms of the deposit being set out in a paper printed as exhibit “C” of the bill. . . .
    7. On April 1, 1906, Davis entered into possession of the premises, leased the upper stories to various tenants and occupied the ground floor himself, and rented the basement to a tenant. This mode of using the building continued until about the first of the year 1908, when the first floor was rented from month to month to a book auctioneer. About this time the city of Pittsburg required the closing of the areaway as a purpresture, and access to the basement was cut off, except through the storeroom. . . .
    9. On January 1, 1908, Davis defaulted in the rent due Mrs. McClure for $2,000, and in like manner defaulted on February 1, 1908, so that in February, there was $4,000 rent in arrears. Negotiations were had between Mrs. McClure, by the Commonwealth Trust Company, her agent, and Davis during this time as to the rent, and on March 3, 1908, Davis was notified by the lessor that she intended, if the rent were not paid, to enter on the premises as agent for Davis and relet the same, under the terms of the lease. At about the same time, and during the same negotiations, the question of the advisability of dividing the first floor by partitions and letting to different tenants was discussed by Mrs. McClure’s agent and Davis, Davis making no objection to doing so and furnishing to her agents the plans which he had himself prepared for making such a change.- . . .
    11. On March 13, 1908, an involuntary petition in bankruptcy was filed against Davis, and Justus Mulert, plaintiff, was on the same day appointed receiver, having been after-wards elected trustee in bankruptcy.
    12. On or about March 19, 1908, Mrs. McClure presented to the district court of the United States for the western district of Pennsylvania, her petition setting forth the amount of rent in arrear and the terms of her lease, and her desire to enter on the premises and relet them as agent for Davis, and praying for leave to so enter, to which petition the receiver answered, admitting the facts stated and averring that he had not entered into possession of the premises demised to Davis and as then advised he had no intention of doing so. Whereupon the court made an order granting the petitioner leave to enter and relet the premises. It is admitted by the parties that this was done merely for the purpose of avoiding any apparent discourtesy to the United States court.
    13. At and before the time of the petition in bankruptcy the Commonwealth Trust Company was endeavoring to find a tenant for the whole of the first floor, and was in communication on this subject with the renting department of the Real Estate Trust Company, but being unable to find a tenant for the whole determined upon a subdivision, which was not communicated to the Real Estate Trust Company, except that in the renting negotiations they knew that it was proposed to rent a part of the store to one Raubitschek in case a lease could not be made for the whole.
    14. On March 23, 1908, Mrs. McClure entered upon the premises .and began the work of subdividing the lower floor and the basement, which was effected by putting up two lath and plaster partitions on the first floor, and corresponding partitions in the basement and making a way into the basement from each portion of the first floor in place of the only way which existed before, which had been closed up by the city as above stated. These changes cost something over $4,000 and took some thirty days to make, and were made substantially in accordance with Davis’ plan furnished to Mrs. McClure above mentioned, except that in one or two instances a pillar was placed in a different location from that shown in the plan. The making of these alterations so as to permit the first floor to be rented to different tenants was greatly for the benefit of all parties concerned and was the proper way to rent the premises so as to produce the largest income therefrom. The partitions are removable, and the building can easily be restored to its original condition.
    15. On April 10, 1908, the Real Estate Trust Company paid to Mrs. McClure $6,000, being the rent for January, February and March. The rent for April was then in arrear since April 1. Mrs. McClure continued after this payment in possession of the premises and proceeded with the changes therein which she had already begun; and after April 2, Mrs. McClure rented the premises to different tenants, the whole amount of rent, however, being less than $2,000 a month. ...
    17. Upon a landlord’s warrant issued for the rent due by one of the subtenants of Davis in the McClure property, March 1, 1908, there came into the hands of plaintiff, as receiver, the sum of $1,250, the money being paid over to him by agreement of the parties to await the determination of the question as to who was entitled to rents accruing before the bankruptcy.
    CONCLUSIONS OF LAW.
    1. No objection was made by any of the parties defendant to the jurisdiction, nor to the apparent multifarious character of the bill, but, on the contraiy, it was agreed by counsel that no such objection should be made.
    2. As to the $25,000 special deposit, the plaintiff claims that the entry by Mrs. McClure upon the premises and the alterations made by her has discharged the Real Estate Trust Company as surety, either as having modified the terms of the contract, or amounting to an eviction, or worked a forfeiture. We are unable to see how the alterations in the building and the leasing of the first floor to three persons instead of one is in any way a change of the contract of the surety. The lease contemplated subletting, and the stipulation in the lease under which Mrs. McClure entered; expressly provides that she may rclet the premises “or any part or parts thereof,” and it must be understood that these parts might be separated from each other by partitions. It is claimed, however, that this clause authorizing the reletting by the lessor is repugnant to the nature of the estate granted, and amounts to nothing but a forfeiture clause and that the entry under it effects a forfeiture, or if not, is an eviction. We cannot see anything in this contract which is repugnant to the nature of the lease, but only an additional remedy which the lessor may have if the lessee makes default in payment. The case is strictly analogous to those cases in which it has been held that, without an agreement to that effect, the landlord may enter upon the premises from which the tenant has removed and relet them, giving credit to the tenant for the rents so received. The remedy was one which the surety itself stipulated should be invoked before it became liable for the rent. We are, 'therefore, of opinion that there is nothing in either the alterations of the premises or the reletting of them by Mrs. McClure which releases the surety from liability to her, and the surety is, therefore, entitled to retain the special deposit held by it as indemnity for this suretyship.

      Error assigned was decree dismissing the bill as to Mrs. McClure.

      S. S. Robertson, with him M. L. Avner, for appellant.

      January 3, 1910:

      R. B. Petty, with him Wm. F. and R. B. Petty, Jr., for Mary McClure, appellee.
   Per Curiam,

The decree is affirmed on the findings of fact and conclusions of law by Judge Shafer.


author: Mr. Justice Stewart,

text:
    Bender v. Bender, Appellant.

      Wills — Devise—Construction—Intention.
    1. In construing a will the rule requires that it be read in the ordinary and grammatical sense of the words employed, unless some obvious absurdity or some repugnance or inconsistency with the declared intention of the testator, as extracted from the whole will, should follow from so reading it. Where this occurs a construction may be adopted avoiding these consequences.
    2. Words and limitations may be supplied or rejected when warranted by the immediate context or the general scheme of the will, but not merely on a conjectural hypothesis of the testator’s intention however reasonable, in opposition to the plain and obvious sense of the instrument. It is the expressed intention that governs.
    3. A devise by a father to a son, naming him, “or his children,” is substitutional in character, and the word “or” will not be construed to mean “and” where there is nothing in the general scheme of the will or any single provision thereof which requires such a construction. Under the devise the son takes a fee if he survives the testator. In such a case the Act of April 8, 1833, P. L. 249, which provides against the lapse of a devise to a son cannot be used as an argument against such construction.
    Argued Nov. 2, 1909.
    Appeal, No. 201, Oct. T., 1909, by defendant, from judgment of C. P. No. 4, Allegheny Co., Third Term, 1907, No. 32, on verdict for plaintiff in case of Roybert Bender v. Lee Vernella Bender.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Ejectment for land in the nineteenth ward of the city of Pittsburg.

      Front the record it appeared that the will of Philip Bender was as follows:
    “ I the undersigned divide my property as follows:
    “ Should I die before my wife then all property shall go to my wife Catherine Bender nee Seibert, as long as she can and wants to administer it. After that it shall be divided as follows:
    “Lot No. 1 Beginning Mignonette and St. Clair Street, 30 feet front on Mignonette Street. Thence along the fence 69-| feet; thence along the fence to St. Clair Street, along St. Clair Street 69£ feet to point of beginning. House and lot to go to Till Dorotea Alexander nee Bender.
    “The other part of Lot No. 1 beginning at No. 1 on St. Clair Street, 30 feet along the fence to No. 2 Thence along the fence 30|- feet to a 10 feet alley, along the alley 30 feet to St. Clair Street, along St. Clair Street, 30& feet to point of beginning. House and Lot to go to Louise Huber nee Bender.
    “Lot No. 2 beginning at No. 1 30 feet front on Mignonette Street. Thence running 100 feet back to a ten feet alley along the alley 30 feet to Lot No. 1 Thence along No. 1 100 feet to point of beginning on Mignonette Street. House and lot to go to Henry Bender or his children.
    “Lot No. 3 Beginning at No. 2 30 feet front on Mignonette Street to Phillipp Menges line along Phillipp Menges line 100 feet to a 10 feet alley along the alley 30 feet to Line No. 2. Thence along No. 2 100 feet to point of beginning, Mignonette Street. House and lot to go to Phillipp Bender or his children.
    “Lot No. 4 Beginning at the 10 feet alley 20 feet on St. Clair Street to M. Rees Line along M. Rees line 90 feet to 30 feet street, along the street 20 feet to the 10 feet alley, along the alley 90 feet to a point of beginning St. Clair Street House and lot to go to Johannes Bender or his children.
    “The 10 feet alley remains private alley exclusive for the Bender property; should the street be opened then the front lots shall have the'same privilege to the alley as the 20 feet lot.
    “The two lots in Meek Gonickgels Plan on Lingkoln Avenue as described in deed shall go to Carl Frank Ernest.
    “Should I the undersigned die first, then my wife shall have the right to make her home in either of the houses. In case this paper should come into the hands of a stranger and I should survive my wife, then this document shall be null and void. Then I can dispose as I please.”
    Other facts appear by the opinion of the Supreme Court.
    The court gave binding instructions for plaintiff.
    Verdict and judgment for plaintiff. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant, and in refusing to enter judgment for defendant non obstante veredicto.

      Wm. E. Schoyer, of Lyon & Hunter, for appellant.-
    A devise to a man or his children is the shortest form of substitutional devise. It means that if the devisee shall die before the testator, or, if there be a precedent life estate, during the pendency thereof, the property devised shall vest in the devisee’s children as purchasers, and that if he survives to the period of vesting he becomes the absolute owner thereof in fee simple: McCormick v. McElligott, 127 Pa. 230; Mickley’s App., 92 Pa. 514; Stooks’ App., 20 Pa. 349; Gibbons v. Fairlamb, 26 Pa. 217; Raleigh’s Est., 206 Pa. 451; Gilmor's Est., 154 Pa. 523; Taylor v. Taylor, 118 Iowa, 407 (92 N. W. Repr. 71).
    There is nothing in the will to change the ordinary construction of the devise to John C. Bender: Griffith v. Woodward, 1 Yeates, 316; McKeehan v. Wilson, 53 Pa. 74; Lipman’s App., 30 Pa. 180.

      S. G. Nolin, with him D. S. McCann and James T. McDonald, for appellee.
    It is an incontrovertible rule of construction that a devise to a man and his children confers only á life estate on the father and vests a fee simple in the children: Crawford v. Forest Oil Co., 208 Pa. 5; Hague v. Hague, 161 Pa. 643.
    It has been held time and again by the Supreme Court that the word “ or ” will be construed “ and ” where it is necessary to give effect to the true meaning of a testator.: Tripp’s Est., 202 Pa. 260; Doebler’s App., 64 Pa. 9; Holmes v. Holmes, 5 Binney, 252; Conway’s Est., 181 Pa. 156; Kelley v. Kelley, 182 Pa. 131; Hauer v. Sheetz, 2 Binney, 532; Scott v. Price, 2 S. & R. 59; Beltzhoover v. Costen, 7 Pa. 13; Menoher’s Est., 18 Pa. Superior Ct. 335.
    January 3, 1910:
    It follows from the principles cited above that if the clause in the will under discussion, “House and lot to go to Johannes Bender or his children,” can be construed, in order to carry out the intent of the testator, “ House and lot to go to Johannes Bender and his children,” that then, Johannes Bender being now dead, the appellee in this case is the owner of the fee simple title to-one-half the land in dispute: Fox’s App., 99 Pa. 382; Woelpper’s App., 126 Pa. 562; Tyson’s Est., 191 Pa. 218.
    The words “ or his children ” were not used in the devises to the sons for the purpose of preventing a lapse: Act 7, April 8, 1833.
   Opinion by

Mr. Justice Stewart,

The case turns on the devise contained in the will of Philip Bender made March 13, 1895, and probated November 25, 1896. Testator gave; first, to his wife a life estate in all his property. Then, following a description of the particular premises here in dispute, he directed as follows, “House and lot to go to Johannes Bender or his children.” Johannes was a son of the testator, and the plaintiff in the action below is a son of Johannes, by a first wife. Testator’s widow died in 1904, Johannes surviving. The latter died October 23, 1905. By his last will duly probated he devised the lot in dispute 'to the defendant, who was his second wife. This sufficiently indicates the status of each of the several parties to the controversy. Philip Bender, whose will we are considering, left two daughters, both married, and three sons also married. He devised to each, in one form or another, a specific piece of property. The devise to each daughter was to her individually, unaccompanied by any words indicating that anything short of an absolute estate was intended by the gift. The several devises to the sons were alike in form, but differed from the devises to the .daughters in that in each case the devise was to the son, "or his children.” We mention this circumstance only to note that Johannes acquired the same estate in the lands devised to him that his brothers acquired in the land devised to them respectively; and the further fact, that for his own purposes, the testator clearly distinguished between the estates given his daughters and those given his sons. The case presents a single question, What estate or interest did Johannes acquire under the devise to him "or his children”? If a fee simple estate contingent upon his surviving the testator or the life tenant, as the case might be, then it follows that the estate became absolute in him, and passed to the defendant as his devisee. If, on the other hand, he took but a life estate, then the fee passed directly to the plaintiff for his proportional interest therein, whatever that might be. The action was ejectment; and a verdict was directed for the plaintiff, the court reserving as question of law the effect tó be given the devise. A motion for judgment non obstante was subsequently dismissed, the court holding that the word 'or’ as it occurs in the devise should be read 'and’; and that so corrected the devise gave to Johannes simply a life estate. We are not concerned to inquire what estate Johannes would take under this reconstructed devise. The question is, what estate did the testator intend him to take? Whence is derived the authority to make any alteration in the devise as written? Clearly this was a case where the learned court fell into serious error through attempting to construe something which did not call for construction. There was nothing in the devise that called for the application of artificial rules in order to discover the testator’s intention. A testator must be allowed to be his own interpreter when he expresses himself in language free from obscurity, and which, as by him employed, conveys a certain definite meaning, to the exclusion of any other. When he succeeds in doing this he has expressed his own meaning, and that the law accepts as the equivalent of intention. That this testator so succeeded in this particular devise admits of no question. In grammatical construction the devise is entirely correct; and it is so definite in expression and terms that but one meaning can be derived from it. It points unmistakably to an alternative gift, and with equal certitude to the intended alternate beneficiary. Why, then, shall there be an exposition of the devise contrary to the words used? That it is modified or changed in any way by subsequent reference to it in the will, cannot be pretended, for it is not once referred to. That it conflicts with any general scheme which can be derived from the will cannot be urged, for there is not a single provision dependent upon it, or which cannot be enforced concurrently with it. Were the devise uncertain because of ambiguity in, some of the words used, it is quite possible that sufficient could be found in other parts of the will to resolve the doubt; but, entirely intelligible and complete in itself, no borrowed light is needed for any purpose in connection with it. Ex vi termini the devise imports a substitutional gift, to provide against a possible failure of Johannes to take. This is peculiarly the case where the word “or” is interposed between the name of the devisee and words of purchase descriptive of the alternative. “The simplest form of a substitutional gift is effected by the use of the word ‘or/ which is usually construed as implying substitution. But in order for a gift to be substitutional, the legatees seeking to put themselves in the place of the deceased legatee, must show that they take by purchase and not by descent:” 30 Am. & Eng. Ency. of Law, 812. Our own case of Gilmor’s Est., 154 Pa. 523, besides being explicit and directly in point, makes such full reference to the authorities that other citation here is unnecessary. Cases where the word “ or,” followed by words of imitation such as heirs or heirs of the body, has been changed into “ and,” are not infrequent-; but our attention has not been called to a single one where the change was made when the words following the disjunctive were words of purchase. We do not say that the change may not be proper in any such case; but the reasons justifying it must not only be found in other parts of the will, but they must be positively compelling to the common understanding. It is argued that it was no part of testator’s purpose to provide against the lapse of the devise to Johannes because it was wholly unnecessary to do so, since under the Act of April 8,1833, P. L. 249, there could have been no lapse. Whether a lapse could or could not have occurred, is of no consequence so far as enabling us to understand what was in the testator’s mind when he wrote his will. How are we to know what his understanding of the act of 1833 was? and how would it help us if we did know? The argument assumes that testator had the act in his mind when he wrote the will, and knew that it prevented lapsing. From this assumption the deduction is made that he must have used the word “ or ” inadvertently or by mistake. The non sequitur here is apparent. The argument proceeds, “If the word ‘or’ was not intended to prevent a lapse, it must unquestionably have been intended for some other purpose; and if the testator was not providing against a lapse, what other purpose could have been intended than to vest a fee simple in the children?” Such clearly was his purpose; but only in the event of the parent’s failure to take. The same estate that the parent would -take if he survived, was given his children in the event of failure. We have indicated quite enough to show on what feeble basis the court relied for its justification in changing the language 'of this devise. At best it is pure conjecture. In construing a will the rule requires that it be read in the ordinary and grammatical sense of the words employed,. unless some obvious absurdity or some repugnance or inconsistency with the declared, intention of the testator, as extracted from the whole will, should follow from so reading it. Where this occurs a con.struction may be adopted avoiding these consequences. Words and limitations may be supplied or rejected when warranted by the immediate context or the general scheme of the •will, but not merely on a conjectural hypothesis of the testator’s intention however reasonable, in opposition to the plain and obvious sense of the instrument. It is the expressed intention that governs. Here it is expressed in no uncertain way, and to give it effect this judgment must be reversed. It is so ordered, and judgment is now entered for the defendant.