author: Per Guriam,

text:
    Given’s Estate.

      Wills — Probate—Citation—Res adjudicata — Estoppel.
    On the death of decedent there were found two wills. In proceedings to contest the second will certain grandchildren of decedent were not cited, but a daughter of the decedent was cited to appear. This will was sustained as valid. Subsequently an appeal was taken from the register’s decree probating the first will. In this proceeding the grandchildren and the daughter were duly cited, and it was conceded therein that the second will was valid and the court accordingly decreed the vacation of the first will. Thereafter the daughter petitioned for an appeal from the probate of the second will which had been duly probated after the first will had been vacated. Held, that the daughter was estopped from contesting the validity of the second will.
    Argued Feb. 7, 1911.
    Appeal, No. 296, Jan. T., 1910, by Mary J. Smith, from decree of O. C. Chester Co., dismissing petition for an issue devisavit vel non in Estate of Mary Given, deceased.
    Before Fell, C. J., Brown, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Petition for an issue devisavit vel non.
    From the record it appeared that when testatrix died she left two wills, one dated February 26, 1898, the other dated August 6, 1905. The first was probated October 6, 1906, the testatrix having died on September 10, 1906. On August 26, 1907, the second will was probated. On September 21,1908, an appeal was taken from the probate of the second will by the executors named in the first will. On October 12, 1908, Mary J. Smith, the appellant, a daughter of the decedent, was served with the citation on the appeal. The decedent’s grandchildren, children of a deceased daughter, were not mentioned in the citation nor were they served. Subsequently an issue was framed and on February 20, 1909, was tried, and a verdict was rendered sustaining the second will. At the trial the appellant was present.' On March 29,1909, the executors of the second will appealed from the decree probating the first will. In this proceeding the citation was served on the appellant and on all parties in interest. On July 6, 1909, there was a hearing in this appeal and the second will was offered in evidence to defeat the first will, and the decree of probate of the first will was set aside. On July 27, 1909, the second will was formally probated. On January 27, 1910, Mary J. Smith appealed to the orphans’ court from the decree of July 27,1909, probating the second will. On April 11, 1910, this appeal was dismissed.
    Butler, J., filed the following opinion:
    If it be conceded that when the issue of forgery on the second will was determined, the court had no jurisdiction of the matter because of the failure to bring in certain grandchildren of the decedent, and that the petitioner who was duly brought in, can take advantage of this circumstance and is to be looked upon as not then having had her day in court, certainly she is concluded by the proceedings and decree upon the subsequent appeal from the action of the register in probating the first will. Then the petitioner and all other proper parties were regularly in court, the second will was presented as a matter of evidence to defeat the earlier will, the validity of the second will, the due execution of which had recently been determined, was conceded, and thereupon this court decreed the vacation of the probate of the will of earlier date. The register then admitted to probate the will of later date. Under these facts the petitioner may not now contest the validity of this will.
    The petition for an issue is denied, and the appeal is dismissed.

      Error assigned was decree dismissing the appeal.

      M. J. O’Callaghan, with him A. M. Holding, for appellant.
    J. Frank E. Hause, for appellees.

      May 17, 1911:
   Per Guriam,

The order dismissing the petition for an issue is affirmed on the opinion of the learned judge of the orphans’ court.


source: Caselaw Access Project

author: Mr. Justice Elkin,

license: Public Domain

text:
    Commonwealth ex rel., Appellant, v. Philadelphia.

      Public officers — Civil Service Commission — Chief examiner — Dismissal — Insubordination—Act of March 5, 1906, P. L. 83 — Findings of fact.

    1. Under the Act of March 5, 1906, P. L. 83, creating a civil service commission, the chief examiner has no power or authority, except such as may be delegated to him by the commission, and he acts at all times under its supervision and subject to its direction. When he undertakes to ignore its wishes, or to disregard its directions, or to question its authority, he assumes a power never intended to be conferred upon him, and is guilty of such insubordination as will justify the commission in removing him.
    2. In a mandamus proceeding against a civil service commission to compel the reinstatement of the chief examiner, who had been dismissed for insubordination, the findings of fact of the lower court are conclusive in the absence of manifest error.
    Argued March 20,1911.
    Appeal, No. 352, Jan. T., 1910, by plaintiff, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1908, No. 1,641, on case tried by the court without a jury in suit of Commonwealth ex rel. William D. Earnest v. City of Philadelphia, Albert G. Hetherington, Henry Drake and William M. Kreider, Civil Service Commissioners of the said City of Philadelphia, John M. Walton, Controller of the said City and County of Philadephia, Murrell Dobbins, Treasurer of the said City of Philadelphia and Peter J. Hoban.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Mandamus to compel reinstatement of a public officer.
    Sulzberger, P. J., filed the following opinion:
    The relator became chief examiner of the civil service commission on November 23, 1906, at a salary of $2,400 per annum. On September 4, 1908, the commission requested the relator to resign his office; he refused, and on September 8, 1908, was discharged.
    The prayer is for mandamus, directing that the relator be restored and that his salary be paid.
    The civil service commissioners in their return allege, in substance, that the relator, as chief examiner, failed in his duty in that he refused to mark the papers of applicants as directed by the commissioners; that his markings in many cases were unjust and inequitable; that his conduct was arrogant and insubordinate, and that he refused to follow the advice, instruction or orders of the commissioners; that on September 4, 1908, Henry Drake, one of the commissioners, in a letter to relator, stated the reason of the latter’s dismissal to be “because of your refusal to follow out the directions that I gave you under authority of the Civil Service Commission,” and that his dismissal was lawful.
    Whether it was or not is the question in dispute. The Act of March 5, 1906, P. L. 83, was passed to regulate and improve the civil service of the cities in the first class in this commonwealth. Some steps in that direction had been taken before. Indeed,- the “Act to provide for the better government of cities of the first class in this commonwealth” (P. L. 1885, p. 37), commonly known as the “Bullitt Act,” contained a rudimentary civil service law scattered in fragments through its several sections (art. 3; art. 12, secs. 2, 3; art. 15), but did not provide for a civil service commission.
    By the twentieth section of the act of 1906, it is provided that no officer, clerk or employee appointed under the act shall be removed, discharged or reduced in pay or position, except for just cause, which shall not be religious or political, nor until he shall have been furnished with a written statement of the reasons for such action, and been allowed to give the removing officer such written answer as the person sought to be removed may desire. In every case of such removal or reduction, a copy of the statement of reasons therefor, and of the written answer thereto, shall be furnished to the civil service commission, and entered on its public records.
    The relator contends that there was no just cause for his dismissal, and that in any event the dismissal was not in accordance with the requirements of the law.
    We have carefully weighed the evidence, oral and written, and have reached the conclusion that the relator was insubordinate, and that the commissioners’ judgment was correct, that his further continuance was prejudicial to the public service.
    The immediate cause of his discharge arose out of the fact that the highway department needed inspectors. An examination of forty applicants was held in April, 1908, ■ only fourteen of whom were placed on the eligible list. On May 29, 1908, there was another examination of twenty-two applicants, only three of whom were placed on the eligible list.
    The highway department needed inspectors. There is no absolute standard of knowledge fixed by general law for the incumbents of this office, nor does the civil service act set up such a standard. It was enacted for another and much deeper purpose, its plain intent being to exclude partisanship, favoritism, prejudice and caprice from the appointment or removal of persons in public employment. To that end the applicants are to be compared with each other in a mode which eliminates these vicious and disturbing factors, and awards priority to the best man. An inspector of highways ought to know how level a street should be, how concrete ought to be mixed, when a street needs repair, and other related practical things. The degree of expertness required is ordinary and easily attainable by plain mechanics with limited scholastic knowledge.
    When, therefore, inspectors were wanted, the commissioners determined to relax some of the more ornamental requirements, such as correctness in “punctuation and capitalization,” meaning that a comma might be omitted or wrongly placed, and that a capital letter written where there should have been a small one, or vice versa, without detriment to the highway service. They so instructed the relator. The latter, no doubt with good intentions, not only objected, but wrote the letter of August 24, 1908. It was offensively insubordinate, in that it refused to obey directions received, declared that they were erroneous, and demanded a specific reiteration of them if he was to heed them.
    Executive business cannot be promptly and effectively carried on if the orders of the superior may, at the election of the inferior, be made the subject of a protracted argument. Nor is it for the good of the service that clerks, who are ready writers, should pile up records of their wise dissent from the lawful orders of their chiefs.
    We think that there was just cause for the relator’s dismissal.
    The question must still be considered whether the mode of dismissal was in accordance with the terms of the civil service act.
    The relator contends that the requirements of the above-cited twentieth section were not complied with. We entertain grave doubts whether he is within its protection. The requirement that the statement and answer “ shall be furnished to the civil service commission and entered upon its public records,” would seem to mean that officers of the various departments of the city government must furnish these papers to the civil service commission and appears to have no reference to the proceedings of the commission itself.
    We have seen that the Bullitt act provided for civil service in a partial way, but left each department to administer it. The weakness of a law which left the appointing chiefs free to act without supervision or publicity soon became apparent. A separate body was needed, which, not having the power to remove or to appoint, might be relied on to supervise and to publish the facts concerning all the departments.

      The circumstance that this civil service commission needs a few examiners and clerks is of little importance in this connection; for, if it cannot be trusted to do so little a thing as to act fairly by these, its whole activity would be merely worthless and the purpose of the act would have failed.
    We need not, however, finally decide this point; for if it be waived or overruled, we are of the opinion th'at the proceedings were entirely regular. The statute contemplates that the officer intending to remove a subordinate must furnish him with a written statement of the reasons for such action, and must allow him to give a written answer before he actually removes him. It may be assumed that such answer will usually deny the offense charged, but whether it does or not, no mode of trial or further proceeding is provided for, save that the statement and answer become public records.
    In the case before us the commissioners notified the relator orally on September 4, 1908, that they would charge him with insubordination. On the same day he acknowledged this notice in writing. The commissioners sent a written reply to this letter on the same day, informing him that the reason for his discharge was his refusal to follow the commissioners’ directions, and that his services would not be required “after Tuesday, September 8.”
    This was a clear written statement of the commissioners’ reasons, and it gave him four days’ time to file his answer before their intended action would take effect. In point of fact, he prepared an elaborate answer, sent it on September 8; it was received and considered by the commissioners, was declared by them insufficient, and they dismissed him on September 8 in a written communication.
    We think that the relator was not deprived of any of his privileges, and has no right to complain of his dismissal.
    The prayer for peremptory mandamus is denied, and the petition is dismissed.

      Error assigned was the judgment of the court.

      Frank P. Prichard, with him Albert Smith Faught, Robert D. Jenks and Vivian Frank Gable, for appellant.—
    The only ground which authorizes a removal from the, service is a "just cause” and before the employee can be deprived of his position that must be made to appear: Truitt v. Philadelphia, 221 Pa. 331.

      T. D. Finletter, with him James Alcorn, for appellees.—
    The findings of the lower court are conclusive: Griffith v. Sitgreaves, 90 Pa. 161; Com. v. Lehigh Valley R. R. Co., 104 Pa. 89; Brown v. Susquehanna Boom Co., 109 Pa. 57; Com. v. Hulings, 129 Pa. 317; Com. v. R. R. Co., 145 Pa. 74.
    May 17, 1911:
   Opinion bt

Mr. Justice Elkin,

This is a mandamus proceeding to compel the reinstatement of appellant as the chief examiner of the Civil Service Commission. He complains that his removal was without just cause and therefore illegal. He was removed on the ground of insubordination, which if true in fact, was a just cause within the meaning of the law. Every subordinate should be respectful to his superior officers, and should be willing to discharge his duties as directed. In the administration of civil service laws much must be left to those intrusted with their enforcement. This is especially true of the civil service commission which was created for the express purpose of regulating and enforcing civil service in cities of the first class. If the authority of the commission to regulate its own affairs may be lightly challenged by one occupying a subordinate position, the effective enforcement of civil service in other departments would be greatly weakened. Nothing could be more demoralizing to the public service than insubordination on the part of subordinates in the discharge of their duties. There must be a head to everything. No work is well done without the direction of competent authority. The subordinate may think he is wiser than his chief, and may honestly believe that he knows how to do the work better, but so long as he occupies a subordinate position, his views must yield to those of his superior. Any other view would destroy efficient discipline without which there can be no such thing as orderly and well-regulated government. In this connection it may be well to glance at those provisions of the civil service act -under which the chief examiner is appointed. Section 3 of the Act of March 5, 1906, P. L. 83, provides as follows: “The Civil Service Commission in each city shall employ a chief examiner and such other clerks, examiners and employees as it may deem necessary or proper to carry out the purposes of this act.” The salaries of the examiners and other employees are fixed by the commission and approved by the mayor. There are no other provisions relating to these appointees. The act is absolutely silent as to what duties they shall perform, or the kind and character of services they shall render. All of these things are left to the discretion of the commission so as “to carry out the purposes of this act.” It seems perfectly clear that the legislature intended the commission to exercise discretionary powers in the appointment of examiners and clerks and in the regulation of the affairs of its own household. There is nothing in the act to indicate a legislative intention to give the chief examiner, or any other employee, the authority to do any act or thing except under the supervision and direction of the commission. The power to enforce the law is lodged in the commission and not in the subordinates. The chief examiner has no power or authority except such as may be delegated to him by the commission. He acts at all times under the supervision and subject to the direction of the commission. When he undertakes to ignore its wishes, or to disregard its directions, or to question its authority, he assumes a power never intended to be conferred upon him. If he persists in setting up his views in opposition to those held by the commission he may very properly be classed as insubordinate. It is conceded if appellant was insubordinate within the meaning of the law there was just cause for his removal, but it is contended that the facts do not warrant such a finding. In the consideration of this point we start with the presumption of good faith in the performance of public duties on the part of the commission which removed appellant. The cause assigned for the removal having been challenged, the whole controversy was carefully considered by the learned court below with the result that the commission was sustained. This is the end of the matter unless there was manifest error in the findings of the lower court. It is very earnestly argued here that the evidence did not warrant such a finding. The case is made to turn upon the question of insubordination. The evidence was largely documentary although there was some oral testimony. It may be that different minds might reach opposite conclusions from the evidence thus presented. But it has been frequently held that findings of fact will not be reversed on this ground unless there is manifest error: Plankington’s Estate, 212 Pa. 235. We find no such manifest error in the findings about which complaint is made as to warrant a reversal. Indeed, the tone of the letters written by appellant to the commission indicates an unwillingness to follow instructions, and a disinclination to do his work as directed. His general attitude as indicated by his acts and letters is not saved from the charge of insubordination because he said in one letter that he would make the changes suggested if requested to do so. What occurred between a member of the commission and appellant in connection with the marking amounted to a request to make the changes. The learned court below has so found and we see no error in the conclusion reached. He must have understood, as we believe he did, that the commission desired him to change the markings as indicated by the marginal notes. Whether it was wise or unwise for the commission to adopt a policy of more liberal marking under the circumstances was a question with which the chief examiner had nothing to do. It was his duty to follow instructions and do as the commission directed. Upon a review of the whole record we see no reason for disturbing the findings and conclusions of the learned court below.

Assignments of error dismissed and judgment affirmed.


author: Per Curiam,

text:
    Siegel v. Megraw, Appellant.

      Arbitration — Findings of fact as to misconduct of arbitrators — Review.
    Findings of fact by the court of common pleas that arbitrators were not guilty of alleged misconduct, will not be reversed by the appellate court, if such findings are based upon sufficient testimony, and there is no manifest error.
    Argued March 21, 1911.
    Appeal, No. 381, Jan. T., 1910, by defendant, from order of C. P. No. 5, Phila. Co., June T., 1905, No. 5,223, discharging rule to set aside award of arbitrators in case of Clarence R. Siegel v. John Megraw.
    Before Fell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Rule to set aside award of arbitrators. Before Martin, P. J. »

      Error assigned was order discharging rule to set aside award of arbitrators.
    J. Hazleton Mirkil, with him J. Hibbs Buckman, for appellant.

      Frank P. Prichard, with him Robert James Earley, for appellee.
    May 17, 1911:
   Per Curiam,

The learned judges of the common pleas carefully considered the testimony in support of the rule to show cause why the report of the arbitrators should not be set aside, and found that the allegations of misconduct were not sustained. This finding appears to be fully sustained by the testimony. Nothing short of clear error would warrant us in disturbing it.

The order of the court discharging the rule is affirmed at the cost of the appellant.


author: Mr. Chief Justice Fell,

text:
    Cronmuller, Appellant, v. Evening Telegraph.

      Negligence. — Pedestrian—Wagon—Contributory negligence — Case for jury.

    1. In an action against the owner of a wagon to recover damages for personal injuries, it appeared that the plaintiff was struck by the shaft of the wagon while proceeding on a crossing from the pavement to a street car that was standing at a regular stopping place to receive passengers. The wagon was being driven north on the east side of the street on which the car ran south. When fifty or sixty feet from the standing car the driver turned in front of it to the west side of the street and passed by the car in a space about nine feet wide with his horse on a fast trot. While doing so he struck the plaintiff. Held, that the question of the driver’s negligence was for the jury.
    2. In the above ease the plaintiff testified on his examination in chief that he stood on the street corner waiting for a car funning south, that when the car was about stopped and the middle of it was opposite to him, he looked south and then north, and saw that tie way was clear in both directions. He then took three or four steps towards the car and was struck when within a step of it. On his cross-examination, however, he testified that when standing on the pavement at the corner, he did not look south but kept looking north. Held, (1) that the plaintiff in his cross-examination did not contradict his statement that he looked south when the middle of the car was opposite to him, inasmuch as he could look south when he was advancing towards the crossing; and (2) that even if there was a contradiction, the case was still for the jury.
    3. Where the testimony whether of the plaintiff or his witnesses is contradictory, and on one part of it he is entitled to go to the jury, and on the .other part he is not, it is for the jury to reconcile the conflicting statements and to say which shall prevail.

      Argued March 21,1911.
    Appeal, No. 10, Jan. T., 1911, by plaintiff, from order of C. P. No. 2, Phila. Co., Dec. T., 1905, No. 1,346, refusing to take off nonsuit in case of William F. Cronmuller v. The Evening Telegraph, Charles E. Warburton, Founder.
    Before Fell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Wiltbank, J.
    The facts are stated in the opinion of the Supreme Court.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was refusal to take off nonsuit.

      Charles Hunsicker, with him J. Ernest Nachod and Joseph W. Hunsicker, for appellant.
    — It is the duty of drivers of wagons to approach street crossings, recognizing the fact that people may attempt to cross at that street, and it therefore becomes a duty to have the team in such condition as to be able to stop it: Kleinert v. Ice & Coal Co., 6 Pa. Superior Ct. 594; Christian v. Commercial Ice Co., 3 Pa. Superior Ct. 320; Freel v. Wanamaker, 208 Pa. 279; Kauffman v. Nelson, 225 Pa. 174.
    The best that can be said from appellee’s standpoint is that the inferences to be drawn from the facts are open to debate and not free from doubt. In this event the case is for the jury: Allen v. Warwick Township, 9 Pa. Superior Ct. 507; Kuntz v. R. R. Co., 206 Pa. 162; Mortimer v. Traction Co., 216 Pa. 326; Ely v. Ry. Co., 158 Pa. 233; Glase v. Phila., 169 Pa. 488; McGovern v. Union Traction Co., 192 Pa. 344; Armstrong v. Consolidated Traction Co., 216 Pa. 595; Howard v. B. & O. R. R. Co., 219 Pa. 358.

      W. W. Smithers, for appellee.
    — No negligence on the part of the defendant was shown: Goshorn v. Smith, 92 Pa. 435; Bolton v. Colder, 1 Watts, 360; Brooks v. Thomas, 17 Phila. 45; Henson v. Arthur, 217 Pa. 156.

      Plaintiff lacked due care and was therefore guilty of contributory negligence: Henson v. Arthur, 217 Pa. 156; Reese v. Clark, 146 Pa. 465; Harris v. Ice Co., 153 Pa. 278; Callahan v. Traction Co., 184 Pa. 425; Carroll v. R. R. Co., 12 W. N. C. 348; McCauley v. Traction Co., 13 Pa. Superior Ct. 354; Walsh v. R. R. Co., 222 Pa. 162.
    May 17, 1911:
   Opinion by

Mr. Chief Justice Fell,

The plaintiff was struck by the end of the shaft of the defendant’s delivery wagon while walking on a crossing from the foot pavement to a street car that was standing at a regular stopping place to receive- passengers. The negligence of the driver was manifest. He was driving north on the east side of the street on which the car ran south. When fifty or sixty feet from the standing car he turned in front of it to the west side of the street and passed by the car in a space about nine feet wide with his horse on a fast trot. He knew the car was stopped to take on or let off passengers and that in all probability some one would be passing over the crossing between the curb and the platform, yet, without exercising the slightest care for the safety of others, he came to the crossing from a place where a few seconds before he could not have been seen from the corner where the plaintiff stood. Persons using the public streets owe to each other the duty of reasonable care, and the duty of each is to be determined by the circumstances. The stop of a street car at a crossing is necessarily brief and any person wishing to get on or off the car has but a few seconds in which to act, and if delayed to allow a vehicle to pass, he may lose the opportunity to get on or off. The necessity for quick action ' on his part gives him a right to the use of the crossing that calls for the exercise of a very high degree of care by the driver of a vehicle.

In determining whether the plaintiff’s negligence defeated his right to recover, the testimony was this: In his examination in chief, when he was stating what occurred in a narrative form, he said that he stood on the street corner waiting for a car running south. When the car was about stopped and the middle of it was opposite to him, he looked south and then north and saw that the way was clear in both directions; he then took three or four steps towards the car and was struck when within a step of it. On his cross-examination he testified that when standing on the pavement at the corner, he did not look south but kept looking north. This left in some uncertainty his position when he looked but it did not contradict his statement that he looked south when the middle of the car was opposite him. Looking as he advanced would be quite as effective as looking before he started, but if there was a contradiction that left the net result of his testimony in doubt he was entitled to go to the jury. It was not in relation to something he was bound to prove to make out his case. He was not required to disprove contributory negligence but only to make out a case clear of it, and if there was any doubt on the subject it was for the jury to resolve it. Where the testimony, whether of the plaintiff or his witnesses is contradictory, and on one part of it he is entitled to go to the jury, and on another part he is not, it is for the jury to reconcile the conflicting statements and to say which shall prevail: Ely v. Railway Co., 158 Pa. 233; Glase v. Philadelphia, 169 Pa. 488; Danko v. Railways Co., 230 Pa. 295. Moreover, it must be borne in mind in considering whether there was contributory negligence that the car was standing at a street crossing and the wagon came suddenly and rapidly from the east side of the street, its proper place in going north, to the west side. The plaintiff had little reason to apprehend the danger and no opportunity to avoid it.

We think it was error to enter a nonsuit and the judgment is reversed with a procedendo.


text:
    Steel v. Linn, Appellant.

      Wills — Trusts and trustees — Rule in Shelley’s case — Dry trusts — Fee simple estate.

    Where a testator gives all his estate to his wife for life and upon her death “then all of said property to be eaquely divided between my Four Children [naming them] dureing their Natural lives then said property to be divided eauqly Among their natural Heirs, and I do hereby appoint H. the trustee of my Four Children, ” the children take a vested fee in remainder. The naming of the trustee created a dry trust which was executed by the statute so as to give to the children a legal and not an equitable estate, and the devise over being a legal estate, the two coalesced under the rule in Shelley’s case.
    Argued March 27,1911.
    Appeal, No. 61, Oct. T., 1911, by defendant, from judgment of C. P. No. 4, Allegheny Co., Third Term, 1910, No. 229, for plaintiff on case stated in suit of Amelia R. Steel v. Peter Linn.
    Before Fell, C. J., Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Case stated to determine marketable title to real estate.
    Swearingen, P. J., filed the following opinion:
    Peter Wilbert died testate, June 29, 1880, seized in fee of certain real estate, described in the case stated, situate in the borough of Carnegie, Allegheny county, Pennsylvania. He left a will dated June 28, 1880, which was duly probated after his death, and the same now remains on file in the register’s office of said county of Allegheny, and is recorded in Will Book, vol. 22, p. 604. In said will the testator provided, inter alia, as follows:
    “Second. I give and bequeath to (Christina Lightner) now my beloved wife all my real personal and mixed property to have and to hold the same for the balance of her natural life, for her own use and behoof and at her death then all of said property to be eaquely divided between my Four Children, Peter, George, Chatharine, Menerva dureing their Natural lives then said property to be divided eauqly Among their natural Heirs, and I do hereby appoint William Hill Esq. the trustee of my Four Children and I do further appoint W. J. Steen and A. J. McQuitty my executors.”
    The said Christina Wilbert, widow of said testator, died May 20, 1882. William Hill, named as trustee in said will, never accepted said trust nor attempted to perform any duties as trustee.
    By deed of general warranty, dated December 10, 1886, and duly recorded, the said four children, mentioned in said will, conveyed said real estate in fee simple to Winifred Thomas; and that title is now vested in Amelia It. Steel, the plaintiff.
    By written agreement dated March 9, 1910, the plaintiff and her husband agreed to sell and convey the aforesaid real estate, in fee simple, unto Peter Linn, the defendant, on or before March 31, 1910, for the consideration of $8,250, of which $50.00 was paid in cash upon the execution of the agreement, and the remainder was to be paid on or before March 31, 1910. On March 30, 1910, the plaintiff tendered the defendant a proper deed for said real estate and demanded the balance of the purchase money. The defendant refused to accept the deed and to pay the balance of purchase money, alleging that the plaintiff did not have a good and marketable title to said real estate. This suit was then brought to recover said sum of $8,200. The parties have agreed upon a case stated, wherein they have stipulated that, if, in the opinion of the court, the said four children of Peter Wilbert, deceased, took title in fee to said real estate, judgment shall be entered in favor of the plaintiff for the sum of $8,200; but if, in the opinion of the court, the said four children did not take title in fee, that judgment shall be entered in favor of the defendant.
    Two questions were submitted for decision upon the argument:

      (1) Did the appointment of William Hill as trustee prevent the application of the rule in Shelley’s case?
    (2) Did the said four children of the testator take an estate in fee under the rule in Shelley’s case, or did they take a life estate only?
    1. We do not regard the naming of William Hill as trustee for the children of Peter Hill as having any effect upon the construction of the devise to them. No object for the creation of a trust was specified in the will, nor were any duties prescribed for the trustee either with respect to the beneficiaries or with respect to the property devised. The trustee never did accept the appointment, and he never performed any duties thereunder. The trust was a dry or passive trust, pure and simple, and it was executed by virtue of the statute of uses. Therefore, the estate which the said children took was a legal, not an equitable, one, and the devise over, being a legal estate, the two can coalesce, under the rule in Shelley’s case.
    2. What was the estate which these children took under the said will? The rule in Shelley’s case is a rule of law and is not merely a rule of construction of the language of a will. The question always is, Has the testator used language which brings the case within the operation of the rule? If he has done so, his supposed, or even declared, intentions are of no importance: Hileman v. Bouslaugh, 13 Pa. 344; Kleppner v. Laverty, 70 Pa. 70; Curry v. Patterson, 183 Pa. 238.
    It seems clear to us that this testator has used language which brings the interpretation of this will within the rule in Shelley’s case. After the widow’s life estate terminated, the testator divided the remainder equally among his four children for their lives, and then directed that it should be divided equally among their natural heirs. In other words, the share of each ancestor should go tó his respective heirs equally. This is not a mode of distribution contrary to the intestate laws, but it is in accordance with them: Appeal of Cockins, 111 Pa. 26. Therefore, the rule in Shelley’s case applies, and the four children of Peter Wilbert took title to said real estate in fee: Reutter v. McCall, 192 Pa. 77; McCann v. Barclay, 204 Pa. 214.
    ORDER*
    And now, to-wit, December 31, 1910, being of opinion that the law is with the plaintiff, it is ordered that judgment be entered in favor of Amelia R. Steel, the plaintiff, against Peter Linn, the defendant, in the sum of $8,200.

      Error assigned was in entering judgment for plaintiff for $8,200.

      John L. Prestley, with him Harry J. Nesbit and James E. Little, for appellant.

      Herbert R. Hahn, with him Lyon & Hunter and Harrison Bock, for appellee.
    May 17, 1911:
   Per Curiam,

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


author: Mr. Justice Potteb,

text:
    Bergdoll v. Sopp, Appellant.

      Mortgage — Collateral for debt of another — Amount—Presumption— Evidence.

    Where a loan of $11,000 was made on condition that the father of the borrower should execute a mortgage for $8,000 as collateral security, and there is a contention as to whether the mortgage is given to secure the whole indebtedness, or only $8,000 of the debt, the presumption is, in the absence of special indemnity covenants, that the mortgage was not given as security for more than its principal sum, and in the absence of evidence to the contrary the presumption will stand.
    Argued March 27,1911.
    Appeal, No. 63, Jan. T., 1911, by defendant, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1905, No. 525, on verdict for plaintiff in case of Emma C. Bergdoll v. Ernest Sopp.
    Before Fell, C. J., Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Reversed.
    Assumpsit for balance alleged to be due on a mortgage. Before Davis, J. See 227 Pa. 363;
    From the record it appeared that on or about September 10, 1903, the son of the defendant borrowed $11,000 from the plaintiff. The latter made the loan on condition that the defendant would execute the mortgage in suit as collateral security to her. Subsequently the son’s indebtedness to the plaintiff was increased, and at the time of his death it amounted to $12,200.27. His estate was insolvent, and the plaintiff received a dividend of sixteen and eleven twenty-firsts per cent upon her whole claim of $12,200.27, amounting to $2,015.95. After receiving the dividend she brought suit upon the mortgage, claiming that it was given to her as security for the whole indebtedness, and that she had the right to apply the $2,015.95 to the unsecured part of the debt due to her and to recover the whole amount of the mortgage. The defendant claimed that it was collateral for only $8,000, and that he was entitled to have the dividend credited pro rata upon that part of the indebtedness which his mortgage, secured. He paid the difference, with interest, costs and counsel fees, and the case proceeded to trial for the determination of a single issue, viz.: Had the plaintiff the right to apply the dividend paid her to the unsecured part of her claim? The trial judge instructed the jury to render a verdict for the plaintiff. The court in banc subsequently entered judgment for the defendant non obstante veredicto; which judgment, on appeal, was reversed by the Supreme Court with a venire facias de novo. At the next trial the case was submitted to the jury and a verdict was rendered for the plaintiff, for $1,668.91, and judgment thereon. The defendant appealed.
    Verdict and judgment for plaintiff for $1,668.91. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.
    ' Alex. Simpson, of Simpson & Brown, for appellants.—
    Where it is sought to reform a bond in accordance with a contemporaneous parol agreement, such parol agreement must be made out by “clear, precise and indubitable proof:” Spencer v. Colt, 89 Pa. 314; Hickernell’s App., 90 Pa. 328; Stafford v. Giles, 135 Pa. 411; Thorne, McFarlane & Co. v. Warfflein, 100 Pa. 519; Schettiger v. Hopple, 3 Grant (Pa.), 54; Penna. R. R. Co. v. Shay, 82 Pa. 198; Phillips v. Meily, 106 Pa. 536; Jackson v. Payne, 114 Pa. 67; Sutch’s Est., 201 Pa. 305.

      Joseph Gilfillan, with him George S. Graham, for appellee.
    May 17, 1911:
   Opinion by

Mr. Justice Potteb,

When this case was here before (227 Pa. 363), we decided that there was evidence upon the record, by a witness named Borasky, which, if believed, would justify a finding that the $8,000, mortgage in suit had been “given as a general indemnity against any loss on the entire $11,000 indebtedness.” A judgment for the defendant was reversed with a venire facias de novo that the case might be submitted to a jury to determine whether the mortgage was “collateral for every dollar of the $11,000” or simply for $8,000 of such indebtedness. This witness did not appear at the retrial of the cause, and the only evidence upon the subject was given by the plaintiff herself.

Upon the former trial Borasky said that Mrs. Bergdoll had stipulated “that the $8,000 mortgage will be as a collateral for the $11,000 loan;” whereas at the last trial Mrs. Bergdoll’s testimony was that at the time the security was negotiated she had said, “I want to be protected,” and that the mortgagor’s son, for whom the security was being given, replied, “You can’t lost a cent in the transaction, because, first, the place would not bring less than $3,000, even if it was in bankruptcy; then you have my father’s mortgage in addition;” and that “the father nodded his head.” On cross-examination, in reply to the question, “As I understand you, at that conversation it was explained to you that as your debt was $11,000 or would be about $11,000, the saloon was worth $3,000?” she answered, “That is what young Mr. Sopp said. He said you can’t lost a cent on this transaction, because in case of bankruptcy, the saloon would surely bring $3,000, and then you have the father’s $8,000.” Immediately after this, in reply to the question, “The possible debt was $11,000, and you had $3,000 sure in the saloon no matter what happened and you had the $8,000 balance?” she said, “Yes,”

The testimony just detailed is not in any sense the equivalent of that given by the witness Borasky at the former trial. If it were, the judgment for the plaintiff would not be disturbed; but we cannot sustain the judgment upon the proofs before us. It was a conceded fact that the mortgage was given as collateral for the debt of another. There being no special indemnity covenants therein, in the absence of evidence to the contrary, the presumption is that the mortgage was not given as security for more than its principal sum. Therefore it required proof to show that it was intended as security for a larger amount. The evidence produced was insufficient for that purpose; on the contrary, it indicates that the mortgage stood as security only for the amount of the indebtedness over and above the $3,000 value placed upon the saloon, or, in other words, for $8,000.

Under the circumstances binding instructions should have been given for the defendant, or, this not having been done, judgment non obstante veredicto should have been entered in his favor.

The assignments of error are sustained, the judgment is reversed, and judgment is here entered for the defendant.


author: Mr. Justice Moschziskeb,

text:
    Mifflin’s Estate.

      Wills — Construction—Children—Grandchildren—Trusts.
    1. Testatrix provided that her property should be held in trust for her seven children so that each should receive “an equal seventh part” of the income, without liability for debts, during his or her life; that upon the decease of any of her children leaving children or issue they were to take the proportionate share of the parent “in fee simple;” that upon the decease of any of her children without leaving children or issue, the income of a child so dying was to be divided equally among the surviving children of the testatrix, the issue of any of her seven children who might then be dead to take between them the part which their parent would have taken if living, adding, “such accruing shares to be regarded in all respects as parts of their original shares, both as to the enjoyment and transmissions thereof.” Held, that the clause last quoted referred to the shares originally taken by the children, and not the shares coming to grandchildren through the death of childless uncles and aunts.
    2. Such a construction is not defeated by a provision that each of the said children should have the power to limit and appoint by will the income coming to him or her so that it would be enjoyed for life by a surviving widow or husband; and that if any of said children should leave issue, such child might limit and appoint how his or her “child, children or issue,” should take “whether in fee simple or for any other estate upon trusts or otherwise.”
    3. Words employed by the testatrix in such case in providing for the disposition of her property after the death of any of her children without leaving any child him or her surviving, viz.: “to receive and pay over the rents and income of such share or shares” to beneficiaries indicated, in the absence .of a limitation over, or any express or implied restriction upon the payment of the corpus, carry with them the right to the principal absolutely.
    4. Where an instrument suggests it, the law encourages a construction favorable to the unfettering of an estate rather than one which leads to a prolonged restraint upon its free alienability.
    Argued March 27,1911.
    Appeal, No. 35, Jan. T., 1911, by Thomas Mifflin, from decree of O. C. Phila. Co., Oct. Term, 1888, No. 400, dismissing exceptions to adjudication in Estate of Sarah L. Mifflin, deceased.
    Before Fell, C. J., Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.

      Exceptions to adjudication.
    From the record it appeared that Sarah L. Mifflin provided in her will: “All the rest and residue of the property and estate to me belonging or subject to my appointment I devise and appoint unto my brothers, John Large and James Large, their heirs and assigns, in trust, for the sole and separate use of my children, James L. Mifflin, Thomas Mifflin, John L. Mifflin, William Mifflin, Mary Mifflin, Martha Mifflin, and Phebe Morris Mifflin, to receive and pay over to them or to permit and suffer them to take, receive and enjoy, each an equal seventh part of the rents, issues, interest and profits thereof, for and during their respective lives, but without liability to the debts or engagements of them my said children or any of them; and upon the further trust on the decease of my said children respectively if leaving any children or child or the issue thereof to survive him or her, to grant, assign, and convey his or her proportionate share of the said residuary property and estate to and among the children or child or the issue thereof of my said children, if but one solely, if more than one equally share and share alike, the issue of deceased children of my said children to take equally the share or shares his or her parent would have taken, if living, in fee-simple; but if any one or more of my children shall die without leaving any child him or her surviving, then upon the further trusts to receive and pay over the rents and income of such share or shares of such decedent or decedents to and equally among my surviving children or the issue of any of them deceased leaving issue, shai-e and share alike, such issue taking the share if more than one .equally, if but one solely, which their parent or parents would have taken if living, such accruing shares to be regarded in all respects, as part of their original shares, both as to the enjoyment and transmissions thereof; provided that each of my children shall have power to limit and appoint by will in writing to take effect after death, the rents and income of his or her share to any surviving widow or husband he or she may leave to receive and enjoy the same until the death or marriage of such widow or husband, whichever may first happen; and provided that as respects any of my children who may leave issue at his or her death upon the further trust to assign, grant and convey his or her share of said property and estate to and among his or her child, children or issue as he or she may limit and appoint by writing in the nature of a last Will and Testament, whether in fee-simple or for any other estate upon trusts or otherwise'; and upon default of any such will or appointment upon the further trust after the decease of any of my children who shall leave issue to survive him or her to hold the shares of any such issue who may be born during my life-time upon the like trusts and with the same powers as the shares herein-before devised or appointed in trust for my own children; Provided that it shall be lawful for any of my grandchildren or more remote issue so born within my life-time to dispose of his or her share of said property and estate absolutely and in fee-simple to whomsoever it may please him or her to give and devise the same; and provided if any one of my children be the last survivor of my family without leaving any issue of any of my children him or her surviving, then- upon the further trust to assign and convey all the said trust estate and property as he or she shall by last will and testament direct, limit and appoint in fee-simple or for any less estate.”
    By appointment of the orphans’ court the Land Title & Trust Company became trustee under the said will, and the principal accounted for by the said trustee is the subject of the adjudication from which this appeal has been taken.
    The testatrix, Sarah L. Mifflin, died June 23, 1856, and left to survive her seven children: John Mifflin (who died July 8, 1859); Martha Mifflin (who died May 2, 1867); Thomas Mifflin (who died August 29, 1870), Phebe Mifflin (who died April 10, 1872); all childless and intestate; James L. Mifflin (who died September 25, 1872, leaving three children and a widow, and who exercised his power of appointment by will and devised his “estate, interest and property” under the will of his mother to his widow for life, then to his children under the trusts of his will); Mary Mifflin (who died February 3, 1873, childless and intestate), and William Mifflin (who died May 13, 1899, leaving a widow but no issue, and who exercised his power of appointment in favor of his widow, Ann P. Mifflin, for life, without any limitation over; the widow died October 24, 1909). The sole surviving descendants of the testatrix are the three children of James L. Mifflin, viz., James Mifflin, Dorothea T. Frohock, and Thomas Mifflin. They are the only grandchildren of Sarah L. Mifflin, the testatrix, and they were all born during her lifetime.
    The court below first awarded the entire balance of principal and income in accordance with the appointment contained in the will of James L. Mifflin, which directed that after the death of his widow the property should be held in trust for his children, to pay them the income during life, without liability for their debts, and upon their death, in trust for such uses as said children might respectively appoint and limit by will, or in default of appointment to their right heirs at law; but later, in a supplemental and amended adjudication, one-third of the estate was awarded to the trustees named in the will of James L. Mifflin, and the other two-thirds to the trustees under the will of Sarah L. Mifflin. Upon exceptions filed by Thomas Mifflin, the appellant here, the whole of the estate was again awarded to the trustees under the will of James L. Mifflin.

      Error assigned was the refusal of the court below to award absolutely to appellant and the other two grandchildren of Sarah L. Mifflin the part of the trust estate which, under her will, was previously enjoyed by Mary Mifflin and William Mifflin.

      John G. Johnson, with him D. P. Hibbard and Samuel P. Tull, for appellant.

      Eli Kirk Price, for appellee.
    May 17, 1911:
   Opinion by

Mr. Justice Moschziskeb,

The question to decide is, Do the three grandchildren of the testatrix, all of whom were born during her lifetime, take the shares of their uncle and aunt, William Mifflin and Mary Mifflin, absolutely and free of trust?

The testatrix provided that the property should be held in trust for her seven children so that each should receive “an equal seventh part” of the income, without liability for debts, during his or her life; that upon the decease of any of her children leaving children or issue they were to take the proportionate share of the parent “in fee-simple; ” that upon the decease of any of her children without leaving children or issue, the incohie of a child so dying was to be divided equally among the surviving children of the testatrix, the issue of any of her seven children who might then be dead to take between them the part which their parent would have taken if living, adding, “such accruing shares to be regarded in all respects as part of their original shares, both as to the enjoyment and transmissions thereof.”

We construe the clause last quoted as referring to the shares originally taken by the children of the testatrix and not to shares coming to grandchildren through the death of childless uncles and aunts. The word “their” used in connection with the phrase “original shares” is significant; it could not be referred to the grandchildren, for they had been given no “original shares.” To “accrue” is “to come by way of increase; to be added as increase;” (Webster’s New International Dictionary) and the grandchildren had no “original shares” that anything could be added to by way of increase.

The testatrix’s plan seems to have been to keep her seven children on a par at all times, whereas no such idea is indicated as to grandchildren. The first and primary thought, and the only intention manifested in the will concerning grandchildren, down to the writing of the clause in question, was that upon, the death of any of the seven children their children should take a fee simple, not in trust. Although the subsequent provisions make it possible for the respective children of the testatrix to limit the estates to be taken by their children directly through them, they fail to show any general or uniform plan for keeping the grandchildren on a par, such as the testatrix evidently intended to preserve for her own children; on the contrary, they indicate quite a different idea. All of which leads us to interpret the clause as having no reference to shares which might fall to grandchildren, after the death of their own parent, through the decease of an uncle or aunt without children him or her surviving.

As we view the will, the thought of the testatrix was that the property should be held in trust for her seven children, each to be paid an equal portion of the income; if any of them should die leaving children the latter should take the share of their parent in fee simple absolute; if any of them should- die without leaving children or issue, the share of one so dying should be divided among the survivors of her séven children, the issué of a previously deceased child to take between them the portion that their parent would have taken if living; and that any accretions which might in this way come to a surviving child of the testatrix should be held in trust and treated as part of his or her original share, this restriction not to apply to the. grandchildren.-

Of course the will must he looked at, from its four corners, but we find nothing therein to vary the conclusions just stated. Immediately after the clause in question, the testatrix provided that each of her seven children should have the power to limit and appoint by will the income coming to him or her so that it would be enjoyed for life by a surviving widow or husband; and also if any of said children should leave issue, such child might limit and appoint how his or her “child, children or issue” should take, “whether in fee-simple or for any other estate, upon trusts or otherwise.” This gave the power to each of the children of the testatrix to cut down and limit the estate of inheritance which would go to his or her children or issue upon and through the death of anyone of the original seven children leaving issue him or her surviving, but it did not affect property coming to grandchildren through the death of a childless uncle or aunt, after the decease of their parent.

The testatrix displayed a special interest in the issue of her children born during her own lifetime, and she evidently desired that such grandchildren or issue should not have the absolute control during their lives of the shares which might come to them from their respective parents unless such parents should so appoint by will. In order to carry out this wish, and evidently for the protection of this special class, she provided that if any one of her seven children should die leaving issue who were born during the lifetime of the testatrix, and if the child so dying should not appoint by will how the share of such grandchildren should be enjoyed, then the shares inherited by such grandchildren should be held “upon the like trust and with the same power as the shares hereinbefore devised or appointed in trust for my own children;” adding, however, “that it shall be lawful for any of my grandchildren or more remote issue so born within my life-time to dispose of his or her share of said property .... absolutely .... to whomsoever it may please him or her to give or devise the same.” This all has reference to shares which might be transmitted from any one of the seven original children to his or her children or issue, and it has no reference to a share coming directly to a grandchild of the testatrix through the death of a childless uncle or aunt, as in the present case.

The words employed by the testatrix in providing for the disposition of the property after the death of any of her seven children without leaving any child him or her surviving, viz., “to receive and pay over the rents and income of such share or shares” to the beneficiaries indicated, in the absence of a limitation over or any express or implied restriction upon the payment of the corpus, carry with them the right to the principal absolutely: Millard’s Appeal, 87 Pa. 457; Beilstein v. Beilstein, 194 Pa. 152; Shower’s Estate, 211 Pa. 297; Schuldt v. Herbine, 3 Pa. Superior Ct. 65. There was an express restriction so far as the children of the testatrix were concerned, for she provided that shares so accruing to them should be regarded in all respects as a part of their original shares; but, as we read the will, she failed in this connection to make any such provision concerning grandchildren, or to place any other restriction upon the payment of the principal to grandchildren who might take an interest in the property through the death of a childless uncle or aunt.

Where an instrument suggests it, the law encourages a construction favorable to the unfettering of an estate rather than one which leads to a prolonged restraint upon its free alienability. Here the primary and underlying intent expressed by the testatrix was that the second generation should take her property in fee simple absolute; hence the estates of the grandchildren should not be cut down or restricted in any instance unless a manifest purpose so to ordain, or to permit the first generation so to appoint, can be found in the will; and this, so far as the present contingency is concerned, we fail to see. We therefore conclude that the corpus of that part of the estate of the testatrix which was last enjoyed by her two children, William Mifflin and Mary Mifflin, should have been awarded to the appellant, Thomas Mifflin, his brother, James Mifflin, and his sister, Dorothea T. Frohock, in equal parts, absolutely and free of all trusts.

The assignments of error are sustained, and the record is remitted to the court below with directions to modify its final decree in accordance with the views expressed in this opinion. The costs to be paid as may be ordered by the orphans’ court.


author: Mr. Justice Moschzisker,

text:
    Faux v. Fitler, Appellant.

      Promissory notes — Evidence—Parol evidence.

    The maker of promissory notes cannot overcome his written promise to pay by his own uncorroborated testimony to the effect that the understanding was that the notes were mere memoranda between him and the plaintiff of a joint-stock speculation, and in the event of a failure to come out whole on the transaction he was not to. be called upon to pay them; nor can recovery on the notes be defeated on the ground that they were given in a wagering or gambling transaction, where the. maker’s own testimony shows that the stock dealings in question were not transactions of that character.
    Argued March 29,1911.
    Appeal, No. 382, Jan. T., 1910, by defendant, from judgment of C. P. No. 5, Phila. Co., March T., 1908, No. 818, entered for plaintiff non obstante verdicto in case of William J. Faux v. Alfred E. Fitter.
    Before Fell, C. J., Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit on promissory notes. Before Ralston, J.
    At the trial the plaintiff produced the notes. The defendant, the maker, testified that he had invited the plaintiff, the payee, to join him in a stock speculation; that the plaintiff had agreed, and had given him $3,000 for that purpose, in three different payments; that when the first money was paid the plaintiff “had his private secretary write out a note for one thousand dollars .... which I signed.” His testimony then proceeded as follows: “Q. What, if anything, was said by you or him as to that note at the time it was drawn up and signed? A. Well, he persuaded me to sign it because he thought it would be a good thing for him to have in case anything occurred to either of us — he should die or I should die — It would be sort of a memo for his estate to have in case of the death of either. Q. What was said about the note at the time it was signed? A. At the time it was signed I think I expected to close up the account before three months, I don’t think anything was said about it.” Concerning the second and third notes the witness testified, “A. Well, he just asked me to sign this note in each case. There was a note to sign in each case. Q. What agreement, if any, was there between you two men at the time you signéd that note, as to what that note should be? A. Why, it was a verbal agreement that the note should be considered as a memorandum of the loan of the money. He said that it was understood between them that the notes were mere memoranda of the transaction, a sort of receipt for the money.” Further, “Q. What, if anything, was said about your paying the note back, paying the amount of the note? A. Nothing at all.”'
    In describing the stock transactions the witness said, “I would put up a certain sum of money and the broker would loan the balance and charge interest on it and buy the stock and he held the stock certificates as security for the money he advanced.” Referring to the stock thus purchased, he said, “I didn’t pay for them, but I bought them outright.”
    The plaintiff denied absolutely that he had any interest in the defendant’s stock speculations or that there were any outside conditions concerning the payment of the notes. He testified that the notes simply represented three separate loans to the defendant for their face value, none of which had been repaid.
    The verdict was for the defendant; but the court below entered judgment n. o. v. in favor of the plaintiff for $4,587, representing the principal of notes with interest.

      Errors assigned were (1, 2, 5) refusing binding instructions for the defendant; setting aside verdict in his favor; entering judgnent n. o. v. for plaintiff; (3, 4) “withdrawing from the consideration of the jury the question as to whether the transaction of which the notes were a part was a wagering or gambling transaction,” and refusal to charge that if the money was loaned to the plaintiff with the understanding that it was to be used to speculate in stocks on a margin without any intention to buy and pay for them outright, the plaintiff could not recover.

      Francis M. McAdams, with him William H. Wilson and Joseph P. Rogers, for appellant,
    cited: Keller v. Cohen, 224 Pa. 434; Adams v. Ashman, 203 Pa. 536; Conmey v. MacFarlane, 97 Pa. 361; Grubb v. Cottrell, 62 Pa. 23.

      Samuel W. Cooper, for appellee,
    cited: Hill v. Gaw, 4 Pa. 493; Butler v. Keller, 19 Pa. Superior Ct. 472; Fuller v. Law, 207 Pa. 101.
    May 17, 1911:
   Opinion by

Mr. Justice Moschzisker,

The plaintiff sued the defendant to recover on three promissory notes, all drawn in regular form, and each of them given by the latter for money received from the former.

When this case was here before (223 Pa. 568) on the question of the sufficiency of the affidavits of defense, we said that it would be “the duty of the trial judge to submit. for the consideration of the jury any meritorious defense the defendant may present.” The question as to whether or not the defendant would be able to sustain his defense by the proper measure of proof was not then before us: Gandy v. Weckerly, 220 Pa. 285. It was for the trial judge to pass upon the question of the sufficiency of the evidence when the defendant came to present his defense.

The only real evidence produced by the defendant to overcome the written promissory notes was his own testimony, and we agree with the court below that this was entirely insufficient for the purpose: Phillips v. Meily, 106 Pa. 536; Fuller v. Law, 207 Pa. 101. While the defendant attempted to escape liability upon the plea that the understanding was that the notes were mere memoranda between him and the plaintiff of a joint-stock speculation, and that in the event of a fáilure to come out whole on the transaction, he was not to be called upon to pay them, yet he nowhere in his testimony states that he ever said to the plaintiff, or that the plaintiff said to him, that the notes were not to be paid according to the terms of the written contracts. It is a very usual thing when one friend lends money to another and requests a note as an acknowledgment, to remark as a matter of politeness that the written promise to pay is merely taken as a memorandum of the transaction to cover the contingency of death. The testimony of the defendant concerning the making of the notes in suit would be entirely consistent with such an incident. It may be that Mr. Fitler thought and understood that he would not be called upon to pay if the stock transactions were not a success, but the evidence falls far short of justifying a finding that any such contract existed between the parties. The first, second and fifth assignments of error are overruled.

The third and fourth assignments are overruled for the reason that the defendant’s testimony shows that the stock dealings in question were not wagering or gambling transactions.

The judgment of the court below is affirmed.