author: Mr. Justice Moschzisker,

text:
    Williams’ Estate.

      Executors and administrators — Decedent’s estates — Title to personal property — Dispute as to title — Jurisdiction of Orphans’ Court — Act of June 16, 1886, P. L. 181¡..

    1. Where personal property has at one time actually been in and formed part of the estate of a decedent, and has been parted with by a representative thereof, the Orphans’ Court has jurisdiction finally to decide the question of ownership, and compel a surrender of it to the estate by one whose title is colorable only.
    2. Where the property claimed is actually in a decedent’s estate, the Orphans’ Court has jurisdiction finally to decide the question of ownership, and incidentally, where the facts call for it to decree a final surrender of such assets to outside claimants.
    3. The Orphans’ Court may issue a preventive decree in the nature of an injunction in order to maintain the status quo, for the protection and preservation of property claimed by the estate of the decedent, the ownership of which is in dispute.
    4. Where certificates of stock of a corporation have been transferred to an executrix who subsequently transfers the stock to herself individually and two other persons by separate certificates, and creditors of the estate intervene by petition and claim that the stock was an asset of the estate and a substantial dispute as to ownership is thus raised, the Orphans’ Court has jurisdiction to decree that until further order of the court the persons to whom the stock had been transferred shall re-assign and re-frapsfer it to the executrix. Such a decree merely restores the status quo to await due settlement of the estate; but the court cannot go further at the time of entering such decree and adjudicate the question of the creditors’ claims against the estate, nor finally determine the ownership of the stock in question.
    Argued March 25, 1912.
    Appeals, Nos. 315, 316 and 317, by Eugene Raymond, George J. Graham and Jennie F. Graham, from decree of O. C. Phila. Co., July T., 1909, No. 41, awarding injunction in Estate of John R. Williams, deceased.
    Before Pell, C. J., Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Petition for restraining order.
    The facts are stated in the opinion of the Supreme Court.
    The court entered the following decree:
    “Now, this ninth day of November, 1911, on considering the petition of J. W. Tyrrell and Associates, the answers of Jennie P. Graham, George J, Graham, and Eugene Raymond, respondents, the testimony and the report of the master, it is ordered, adjudged and decreed, in accordance with the prayer of the petition, that, until the further order of this court,
    “Jennie F. Graham be, and is hereby ordered and directed forthwith to assign and transfer to Jennie P. Graham, executrix of the estate of John R. Williams, deceased, the 16,666 shares of the capital stock of the Amparo Mining Company, received from Jennie P. Graham, executrix, on or about July 9, 1909.
    “George J. Graham be, and is hereby ordered and directed forthwith to assign and transfer to Jennie F. Graham, executrix of the estate of John R. Williams, deceased, the 16,666 shares of the capital stock of the Amparo Mining Company, received from Jennie F. Graham, executrix, on or about July 9, 1909.
    “Eugene Raymond he, and is hereby ordered and directed forthwith to assign and transfer to Jennie F. Graham, executrix of the estate of John R. Williams, deceased, the 50,000 shares of the capital stock of the Amparo Mining Company received from Jennie F. Graham, executrix, on or about July 9, 1909.”
    April 29, 1912:

      Error assigned was the decree of the court.

      William W. Porter, for appellants.
    The court had no jurisdiction: Wood v. Kerkeslager, 225 Pa. 296; McClean’s Est., 11 Pa. D. R. 103; High’s Est., 136 Pa. 222; McGrann’s Est., 12 Pa. D. R. 219.

      Samuel S. Mehard, with him Frederick G. Newbourg, Jr., for appellees.
    We submit that the jurisdiction of the Orphans’ Court in this case is beyond question: Mussleman’s Appeal, 65 Pa. 480; Crossetti’s Est., 211 Pa. 490; Odd Fellows’ Saving Bank’s Appeal, 123 Pa. 356; Gilkeson v. Thompson, 210 Pa. 355; Neal’s Est., 16 W. N. C. 441; Somers v. Hanson, 5 Phila. 87; Fretz’s Appeal, 4 W. & S. 433; Wimmer’s Appeal, 1 Whart. (Pa.) 96; Lewis v. Lewis, 13 Pa. 79.
   Opinion by

Mr. Justice Moschzisker,

John R. Williams commenced proceedings to recover 100,000 shares of the stock of the Amparo Mining Co. from the estate of Edward M. Paxson, deceased; he died and his executrix was substituted upon the record. It was determined that the stock belonged to Williams and the same was duly transferred to his executrix. After getting possession of this asset she transferred a majority of the stock to the appellants in this case, i. e., to herself individually, 16,666 shares, to her brother George J. Graham, a like number, and to Eugene Raymond, Esquire, 50,000, under a claim that these proportions of the stock belonged to the respective transferees and were not the property of the Williams Estate. Thereupon the appellees and one Young, claiming to be creditors, respectively petitioned the Orphans’ Court for an order on the appellants to restrain them from parting with the shares in question and for a decree that they should return the stock to the personal representative of John R. Williams, deceased, “to await the settlement of said estate.” The parties to these proceedings agreed, “That William B. Linn, Esq., shall be appointed master and examiner in the matter of the petition for a restraining order filed by James M. Young; also in.the matter of the petition for a restraining order filed by James W. Tyrrell and his associates.” The master was accordingly appointed and took the testimony; after which he submitted a report containing elaborate findings of fact and conclusions of law and recommending a formal decree. Numerous exceptions were filed, but, without formally acting upon these or confirming the report, the court below adopted and entered the decree as recommended, viz, “Now ...... it is ...... decreed, in accordance with the prayer of the petition, that, until the further order of this court,......Eugene Raymond be, and is hereby ordered and directed forthwith to assign and transfer to Jennie F. Graham, executrix of the estate of John R. Williams, deceased, the 50,000 shares of the capital stock of the Amparo Mining Go. received from Jennie F. Graham, executrix, on or about July 9,1909,” with a like order as to the stock transferred to the other appellants. The appeals are from this decree. By stipulation of counsel duly filed it is agreed, “That the claim of James M. Young is a valid claim against the estate of John R. Williams, and it is further agreed ...... that the decision in the Tyrrell appeals shall stand as the decision of the Supreme Court in the Young appeals.” There are 245 assignments of error, one of which goes to the decree, and the others to the findings and conclusions of the master.

The appellants presented their appeals on the theory that the court below had by its decree finally adjudged that the appellees were creditors of the Williams Estate and had fixed the amount of the indebtedness to them, and further, that the court had finally determined that they, the appellants, were not the owners of the property respectively claimed by them; they contend that substantial error was committed, and attack the jurisdiction of the Orphans’ Court.

We have read and considered the report of the master, the pleadings, the material testimony and the able arguments of counsel on both sides, and are brought to the conclusion that the only questions for our present determination are: What jurisdiction had the court below? What points did the court actually adjudicate? And, what is the scope and effect of the decree entered? Properly to adjudge these questions necessitates the consideration of at least three acts of assembly and certain of our decisions thereunder.

The Act of June 16, 1836, P. L. 784, sec. 19, provides: “The jurisdicition of the several Orphans’ Courts shall extend to and embrace: ...... VIII. All cases within their respective counties, wherein executors, administrators, guardians or trustees may be possessed of, or are in any way accountable for any real or personal estate of a decedent”; and the Act of March 29, 1832, P. L. 190, Sec. 57, par. 1, that obedience to its orders and decrees shall be obtained “on the petition ...... of any person interested, whether such interest be immediate or remote.” The Act of May 19, 1874, P. L. 206, Sec. 7, provides: “The said courts shall have power to prevent by order, in the nature of writs of injunction, acts contrary to law or equity, prejudicial to property over which they shall have jurisdiction,” and “this act was but declaratory of the law as it stood prior to its passage”: Odd Fellows’ SavBank’s App., 123 Pa. 356, 365.

In Tyson’s Est., 191 Pa. 218, speaking by Mr. Justice Mitchell, we said (p. 223), “The jurisdiction of the Orphans’ Court to assist executors and administrators in obtaining control of decedent’s assets is very extensive.” (For a review of the general development of the jurisdiction of the Orphans’ Court, see the opinion by Mr. Justice Agnew in Mussleman’s App., 65 Pa. 480; and for a discussion of the limitations thereon, Power v. Grogan, 232 Pa. 387.) To come to the cases bearing more directly on the points involved: (1) In Brooke’s App., 102 Pa. 150, a surety for a guardian had possession of property belonging to the ward. Upon application of the guardian the Orphans’ Court of Philadelphia County ordered the surety to hand over the property to his principal, Hanna, P. J., saying (p. 154), “A guardian is but a trustee, and where he deposits with, or surrenders to, another the trust property, either as his surety or a stranger to the trust, such other person becomes a constructive trustee, and the trust property may be followed in like manner as other trust property”; and in affirming we said, “It is the duty of the Orphans’ Court to watch over their (minors’) property and to protect their rights therein. It was therefore within a just exercise of its powers to make an order that the property be paid over to the guardian......” (2) In Odd Fellows’ Saving Bank’s Appeal, 123 Pa. 356, upon petition of an heir, a citation was awarded against third parties alleged by the petitioner to be in possession of property belonging to the estate of a decedent, assigned to them by one of the executors. An order was entered for the delivery of the property. In affirming we said (p. 364) : “The Orphans’ Court has jurisdiction over the estates of decedents. While its authority to try disputed questions of title may well be doubted, it is very certain that it has control of the assets which admittedly belong to the estate of a decedent....... The court had jurisdiction over this property for the reason that it belonged to the estate.” (3) In Marshall’s Est., 138 Pa. 285, an executor pledged an asset of his decedent’s estate for his own debt. Upon the petition of an heir, the custodian of the pledged property was ordered to deliver it up, the court below saying that until the settlement of the estate the property of the decedent was in the possession of the court, and (p. 291), “in those cases in which this court has never had possession of the assets of decedents, ...... the jurisdiction belongs to another tribunal.” We affirmed per curiam. (4) In Mulholland’s Est., 154 Pa. 491, where a guardian had paid money belonging to his ward to the latter’s mother, we held that the Orphans’ Court had authority to compel her by citation to pay the money back to the guardian, stating (p. 500), “The court having jurisdiction over estates of decedents, it follows the fund ...... it need not call in the aid of a court of law.” (5) In Watt’s Est., 158 Pa. 1, the respondent, attorney and surety of the administrator, had possession of certain property of the decedent, and the Orphans’ Court ordered him to pay over the value thereof. In affirming we said, (p. 13) by Mr.' Justice Dean, that the Orphans’ Court “had jurisdiction over the estate ......; it was its duty to lay its hands on the assets of this estate ...... and all persons are amenable to the jurisdiction who have possession of the trust property.” (6) In Hinds’s Est., 183 Pa. 260, where a guardian pledged the property of his ward, without an order of court, for the ostensible purpose of improving the minor’s real estate, and invested the proceeds in a security in which he had a personal interest, upon the petition of the minor the Orphans’ Court ordered the pledgee of the property to transfer and deliver the same to the ward. This was affirmed per curiam. (7) In Gilkeson v. Thompson, 210 Pa. 355, we held that an heir could not maintain a bill in equity to secure a reassignment of a mortgage alleged to have been fraudulently procured from the decedent, where it appeared that a paper purporting to be a will had been admitted to probate and that the plaintiff was conducting a contest to have the alleged will set aside, saying by Mr. Justice Brown (p. 360), that the plaintiff’s proper remedy was under the Act of May 19, 1874, P. L. 206, which gives the Orphans’ Court power to protect property over which it has jurisdiction; and adding, “Though this jurisdiction for the protection and preservation of property may be concurrent and not exclusive, it is the one to which the appellant ought to have resorted, for there his appeal from the probate of the will was pending, and there, if he was entitled to any relief, it could have been given him by a proper order during the pendency of his appeal ......” (8) In Marshall v. Hoff, 1 Watts 440, an executor died in possession of assets of his decedent, which assets came into the hands of the former’s administrator. Upon appeal from the adjudication of the Orphans’ Court which awarded these assets to.the estate of the deceased executor, we reversed and decreed that they should be held by the accountant for the benefit of the person entitled thereto under the will of the first decedent. (9) In Miller’s App., 84 Pa. 391, an executor with power of sale sold lands not belonging to his decedent, by mistake. The Orphans’ Court charged the executor with the fund thus realized, and he appealed. In reversing, we held that it was perfectly clear that the property did not belong to his decedent, and that the money realized was not an asset of the estate. (10) In High’s Est., 136 Pa. 222, an executor charged himself with certain money arising from the sale of property; his account was confirmed and an award made of the funds. Afterwards the accountant made an effort to get the money back through a claim at the audit of the account of the administrator of the deceased distributee. The Orphans’ Court refused his claim, and in affirming, we said (p. 236), that the money could not be shown to have been wrongfully included in the account, “for the reason ...... that the fund has been judicially ascertained to belong to the estate of ...... (the distributee).” (11) In Smith’s Est., 144 Pa. 428, upon the adjudication of the account of an executor certain coupons embraced therein were claimed by a third party. The facts involved were not disputed, and the court below found in favor of the claimant, which on appeal was affirmed. (12) In Gaffney’s Est., 146 Pa. 49, a decedent in his life time made a bank deposit to the credit of himself as the “trustee for Polly McKim”; and the account so stood at the time of his death. The bank paid the money to the decedent’s executor who included it in his account. Upon the audit, on the claim of Polly McKim the amount of the deposit was awarded to her. In affirming we said (p. 53), “The money is now in the hands of the executor of Hugh Gaffney; and if it really belongs to the estate of Polly McKim no good reason is apparent why she should proceed against the bank, and compel it to pay the money the second time. An action for money had and received would lie against the Gaffney estate, and, if such action would lie, it may be recovered in this proceeding in the Orphans’ Court.” (13) In Qualters’s Est,. 147 Pa. 124, money was deposited in a bank in the name of a wife. Upon her decease the husband as her administrator withdrew the deposit and included it in his account. At the adjudication he claimed that the money was his individual property. The claim was disallowed for want of proof, and we affirmed. (14) In Crosetti’s Est., 211 Pa. 490, money was deposited in the name of a wife, upon whose death the husband as her administrator withdrew the money. He died and his executors filed an account of the administration of the deceased wife’s estate, in which they included the fund derived from the deposit. At the audit they claimed this fund as the property of the husband. The Orphans’ Court held that the claim was not sustained. In affirming; per Justice Elkin, we said (p. 494), “It is true the general rule is that no one can claim in the distribution of a fund in the Orphans’ Court except through the decedent as creditor, legatee or next of kin.......• There is, however, an exception recognized in many cases, as for instance where the fund may be shown to be wrongfully included in the account either, because, though in the name of a decedent it is really a trust, or where the title or ownership is in another person. ...... The present case isi clearly within the exception, and the court below had jurisdiction to pass on the same.......(p. 496). The present case is not the ordinary distribution of the funds belonging to the estate ...... but it is a contest involving the ownership of the funds deposited in the saving fund societies ...... The jurisdiction of the Orphans’ Court only attaches because of the equity powers lodged therein.” (15) In Hermann’s Est., 226 Pa. 543, a son as the executor of his father included the stock and merchandise of a store in the inventory of the latter’s estate, but in his account and at the audit he claimed a half interest in these assets, as a business partner of the decedent. The Orphans’ Court assumed jurisdiction and decided that the alleged partnership extended only to the profits and not to the ownership of the stock and merchandise. We affirmed, saying by Mr Justice Stewart (p. 546), “It is to be noted that the partnership was first asserted by the accountant and that he voluntarily made it the subject of accounting. That the Orphans’ Court has jurisdiction in such a case as this appears abundantly in Brown’s App., 89 Pa. 139.” (16) In Paxson’s Est., 225 Pa. 204, we said, per Mr. Justice Stewart (p. 206), “The effort was to withdraw from the estate an item of property included in the inventory and fully accounted for....... The property being presumptively an asset of the estate ...... the court had full jurisdiction to adjudicate any question in regard to it which stood in the way of its distribution; it could even relinquish its control of the property if the legal right to it was with the claimant. The party claiming property in the custody of the law is the actor; he has a choice of forum and remedy (p. 207). He can elect to proceed at common law for money had and received or he may submit his claim upon distribution proceedings in the Orphans’ Court....... If he elect to pursue the latter remedy he voluntarily brings himself and his cause within the jurisdiction of the court; he is not thereby creating a jurisdiction where none existed before, but adopting one already established. The case is very different where the disputed property has never been within the grasp of the court but is in the possession of one claiming adversely ‘to the estate. In the latter case the Orphans’ Court has jurisdiction of neither person nor thing....... The learned auditing judge, because the amount involved was very large and the evidence conflicting directed an issue ...... We quite agree that the case was preeminently one which called for an issue; but the fact remains that the jurisdiction of the court in nowise depended upon the granting of the issue.” (17) In Cutler’s Est., 225 Pa. 167, a daughter as the agent of her father received securities belonging to him. He died and she became his executrix. She omitted these securities from the inventory filed, claiming that they had been given to her by her father during his life; whereupon she was cited to show cause why she should not include them as an asset of the estate. At the audit she exhibited deeds of gift signed by her father. The other parties in interest introduced evidence to show that at the time of the execution of these papers the father was mentally incapable. The Orphans’ Court held that the securities belonged to the estate of the decedent, and surcharged the accountant. We reversed on the ground that the court below had no jurisdiction and that an issue should have been directed to the Common Pleas. In so doing we said, per Mr. Justice Stewart (p. 169), “The Orphans’ Court is a court of limited jurisdiction, exercising only such power as is given it by statute, expressly or by necessary implication ...... (p. 170). The jurisdiction of the Orphans’ Court is limited to the estate of which the testator died seized. With respect to such estate it has full jurisdiction; but this marks its ultimate limit. Whether a specific article of property belongs to the estate, is a question standing in limine; if it does not, the executor is not accountable therefor, and it is beyond the power of the court to control it in any way or charge liability on any one in connection therewith....... (p. 171). If at testator’s death the property is shown to have been in his possession, or if for any other reason it was presumptively his, a mere denial of his ownership unsupported will not oust the court of its jurisdiction, but the court may proceed with its investigation so far as to inform itself, whether the denial is made in good faith and a substantial dispute exists. If the dispute be a substantial one, and the title be really involved, may the court further proceed to settle ¿nd determine the matter in dispute? Certainly no authority to do so can be found within the terms of the statute, and we think it quite as clear that it cannot be implied from anything in the act (p. 172). Such muniments of title as those upon which this accountant here rested may be overcome and oftentimes are, but the assault upon them cannot be carried on in the Orphans’ Court. ...... We must assume that the evidence offered by the exceptants showed a substantial dispute as to the validity of the written assignments. The question thus presented was a preliminary one on the determination of which the jurisdiction of the Orphans’ Court depended. ...... (p. 173). Having once determined that a substantial dispute existed as to the ownership of these securities ...... the court should have at once directed an issue to the Common Pleas as it is empowered to do by the Act of March 29, 1832, P. L. 190. A verdict upon the issue would have been more than advisory; unreversed, it would have been conclusive ...... (p. 174). It comes to nothing that the appellant did not ask for an issue ...... It was the duty of the court, once convinced that the dispute was substantial......, to direct it.”

Most of the cases reviewed may be classified as members of one or the other of two general groups: (a) Those wherein it is ruled that the Orphans’ Court has jurisdiction finally to decide the question of ownership and compel a surrender to a decedent’s estate of assets improperly held by one whose title is colorable only; to this class belong cases numbered 1, 2, 3, 4, 5, 6 and 8 above. In all of these the property claimed had at one time actually been in and formed part of the estate of the decedent and had been parted with by a representative thereof; no substantial dispute as to ownership existed in any of them, (b) Those wherein it is ruled that the Orphans’ Court has jurisdiction finally to decide the question of ownership of property already actually in a decedent’s estate and, incidentally, where the facts call for it, to decree a final surrender of such assets to outside claimants; to this class belong cases 9, 10, 11, 12, 13, 14, 15 and 16. In each of these the property claimed was actually in the estate, and therefore, at least temporarily, in the custody and under the jurisdiction of the Orphans’ Court, when the claimant voluntarily included the asset in an account stated by him, or brought and submitted the issue of his ownership to that tribunal for its determination. The common principle on which they turn is that, under such circumstances, the court has jurisdiction to adjudicate all questions standing in the way of the distribution of assets in the estate, and when clear that they are included therein wrongfully or by mistake it may relinquish control of the property to the real owner. No. 7 does not belong to either of the above classes; it was a case within the jurisdiction of the Orphans’ Court to issue a preventive decree in the nature of an injunction, in order to maintain the status quo, for the protection and preservation of property claimed by the estate of a decedent the ownership of which was in dispute. Case 17 (Cutler’s Est., 225 Pa. 167), is an instance where the Orphans’ Court went beyond the issuance of a preventive decree and attempted finally to adjudge a substantial dispute concerning the ownership of property not included in the account or otherwise expressly declared a part of the decedent’s estate, and where it was not even clear that the alleged asset was in the possession of the decedent at the time of his death. We there said that, (p. 171) “If at testator’s death the property is shown to have been in his possession, or if for any other reason it was presumptively his...... the court may proceed with the investigation so far as to inform itself whether ...... a substantial dispute exists, (p. 173) Having once determined that a substantial dispute existed as to ownership ...... the court......should at once direct an issue to the Common Pleas,” and we added, that the verdict on such an issue would be conclusive.

The present case, on its facts, is somewhat different from any of those which has preceded it, but from the authorities cited we can gather the controlling principles. Here it had been judicially determined in Paxson’s Est., 225 Pa. 204 (the record of which was introduced in evidence), that the asset in question belonged to the estate of John E. Williams, deceased; the certificate had been actually transferred to his executrix and the stock was physically in his estate and presumptively part of it. The fact that the certificate stood in the name of the executrix would be prima facie evidence that the stock belonged to the estate: Qualters’s Est., 147 Pa. 124, 130; Gaffney’s Est., 146 Pa. 49, 54; Crosetti’s Est., 211 Pa. 490, 496; Paxson’s Est., 225 Pa. 204, 210. Under these conditions, the executrix in the exercise of her discretion attempted to transfer a large part of the stock to the appellants. The asset having been in the possession of the decedent’s estate, and “presumptively his” (Cutler’s Est., supra), the Orphans’ Court had jurisdiction to entertain the petition of any. one with an interest, “whether such interest be immediate or remote” (Act of 1832, supra), for an order to restore the status quo pending the settlement of the estate, and in such a proceeding the court had authority to investigate the facts. But when it appeared that a substantial dispute existed as to the ownership of the stock, the Orphans’ Court could go no further than to restore the status quo; for this purpose it could make an order that the property should be transferred back to the personal representative of the decedent, and thus keep the asset under its control pending a final settlement of the estate or of the disputed question of title. The claimants would then have their choice of “forum and remedy.” They could “elect to proceed at common law,” or they could “submit their claim upon distribution proceedings in the Orphans’ Court” (Paxson’s Est., supra, p. 207); should they fail to do either, then the Orphans’ Court could treat their claim as abandoned and proceed to distribute the asset; or where the facts call for such a course the court could and should at the proper time direct an issue to the Common Pleas (Cutler’s Est., supra, p. 173-174).

Without any desire unduly to restrict the jurisdiction of the Orphans’ Court, and while freely acknowledging its full power to distribute and to protect decedent’s estates, we feel that there should be no departure from the recent tendency not to deprive anyone, without his express or implied consent, of the ultimate right to trial by jury on a question of ownership of property where a substantial dispute exists on the issue. In discussing this subject, in Cutler’s Est., supra, p. 171, referring to an executrix and property claimed by her in her individual capacity, we said, “The Orphans’ Court has jurisdiction over her in her representative character and over the property which she holds as executrix; but with respect to her individual right of property she stands as clear of the power of the court as any third party. One of these rights which ought not to be questioned at this late day is the right to have her case tried by a jury; a right not subject to be defeated or abridged by legislative enactment.” As a rule this practice will cause no undue inconvenience. In the case at bar the determination of the ownership of the particular property in controversy by another tribunal, would not necessarily lead to a conflict of authority through the indirect adjudication of the question of the decedent’s indebtedness to the petitioners and others while passing on the possible collateral issue of the solvency of his estate; for under the peculiar circumstances of a case like the present, — the investigation having been entered upon and the parties being properly in court for that purpose — if such a course be deemed necessary to protect the interests committed to its care and to insure an orderly and correct administration of the law in this respect, the Orphans’ Court could, of its own motion, enter a preventive order restraining persons in the position of these appellants from trying the issues involved in their claim of ownership at common law until all other claims against the decedent had been duly adjudicated by that court and the solvency or insolvency of his estate established, or it could refuse an issue until this has been done. That in a proper case the Orphans’ Court has the power to restrain persons from proceeding in the Common Pleas was ruled in Alexander’s Est., 214 Pa. 369; also see Tyson v. Rittenhouse, 186 Pa. 137.

We conclude that the petitioners showed a sufficient interest to entitle them to the quantum of relief prayed for, but that the court below could not at this time finally determine whether or not they were bona fide creditors of the decedent’s estate or the amount of the alleged indebtedness to them; in that connection these petitioners were only obliged to show that they had a prima facie claim against the estate, and that is all that could have been or was determined in the proceedings under review. Nor could the court below at this time finally determine the ownership of the asset in question ; on the case as presented a substantial dispute existed on that point, involving not only the construction of written documents but the consideration of oral testimony, its meaning and the inferences to be drawn therefrom. The appellants did not inaugurate these proceedings, and in view of Cutler’s Est., supra, it cannot he said that they submitted their claim of ownership to the Orphans’ Court for adjudication. Furthermore, the petitioners only asked that the stock be reassigned “to await due settlement” of the decedent’s estate, and the decree recommended by the master and entered by the court below, in terms, really goes no further than the prayer of the petition. We express no view on the merits of this case; if the parties so desire they may still have them tried and duly adjudged. But we interpret the decree as merely determining that the petitioners had shown a sufficient interest to entitle them to move the court, that the decedent’s estate had a presumptive right to the shares in question and that the stock should be returned to it in order to restore the status quo. Upon this understanding, the assignments of error are dismissed, and within these limitations, the decree is affirmed. The costs to be divided.


source: Caselaw Access Project

license: Public Domain

text:
    Huddy’s Estate.

      Wills — Power of appointment by will — Exercise of power — Election of husband against donee’s will — Act of June A 1879, P. L. 88.

    1. A testatrix by will gave $15,000 in trust to a granddaughter for life with power of appointment by will. The granddaughter married and subsequently died. In her will, after some small pecuniary and specific legacies, she bequeathed one-half of her residuary estate to her husband for life or until his re-marriage, the other half to her sisters and brother, and the remainder after her husband’s life estate to her sisters; she did not direct the payment of her debtsj nor did she expressly exercise or refer to the-power given her by the will of her grandmother. The husband elected to take against her will. Upon distribution of the $15,000 fund in the hands of the trustees the court directed that the whole fund should be paid over to the executors of the deceased granddaughter. Held, that inasmuch as there was no appointment of the fund for the payment of debts and no such blending of it with the donee’s assets as made it impracticable to pay directly to her appointee, the fund was distributable to the residuary legatees named in the will of the granddaughter, these being the ones entitled to take under the will of the creator of the trust as designated by the donee of the power.
    2. In such a case the fact that the husband elects to take against the will of his wife, the donee of the power, in no wise affects the distribution of property thereby directly or incidentally disposed of in the exercise of a power of appointment, for such property is not and never was the “real and personal estate” of the wife, and the husband is therefore entitled to share the trust fund with the other residuary legatees named in his wife’s will.
    3. "Where in such a case there are sufficient funds in the estate of the donee to pay her pecuniary legacies in full there is no necessity for applying the Act of 1879 so as to throw them upon the trust fund, and the law will not assume that the donee of the power intended so to exercise it.
    Argued March 26, 1912.
    Appeal, No. 157, Jan. T., 1911, by Clara Huddy Fagan, from decree of O. C. Pbila. Co., April T., 1897, No. 359, modifying adjudication in Estate of Emma Huddy, deceased.
    Before Mesteezat, Pottee, Stewart and Moschziskeb, JJ.
    Decree modified.
    Exceptions to adjudication. Before Gtjmmey, J.
    The material portion of the will of Emma Huddy was as follows:
    I give and bequeath unto my said executors the sum of fifteen thousand dollars ($15,000) In Trust to invest the same, collect the income thereof, and after deducting the expenses of the Trust pay over the.net income therefrom unto my said granddaughter, Helen W. Fagan, for and during all the term of her natural life. From and immediately after her decease In Trust for such person or persons, and for such estate and estates as she, the said Helen W. Fagan, by her last will and testament shall direct, limit and appoint. In default of such appointment In Trust to pay over and divide the same to and amongst her children and the lineal descendants of any deceased child, share and share alike, the lineal descendants of any deceased child to take the share of their parent. If any children or the lineal descendants of any deceased child shall survive her In Trust to pay over and divide the same amongst her brothers and sisters and the lineal descendants of any of them, who may then be deceased, share and share alike, such lineal descendants to take the shares of their respective parents. If no brothers or sisters or the lineal descendants of any deceased brother or sister shall survive her In Trust for my said daughter, Eliza M. Fagan. If she shall not then be living In Trust for my next of kin absolutely. In the event of the marriage of the said Helen W. Fagan In Trust to pay to her out of the corpus of the said Trust estate the sum of one thousand dollars ($1,000), and her receipt for the same to the trustees aforesaid shall be a full and complete discharge thereof.

      The will of Helen Walsh Fagan Moore was as follows:
    I, Helen Walsh Fagan Moore, being of sound mind body & reason so make this my last will and testament.
    To my Mother for the love I bear.her two hundred dollars.
    I leave to my Father in law William H. Moore one thousand dollars ($1,000).
    I leave to the Ladies Auxiliary of the Seamen & Landsmen’s Aid Society two hundred dollars ($200).
    I leave to Kasmus Simonson (now Missionary of Seamen & Landsmen’s Aid Society) one hundred dollars ($100).
    I leave to Elizabeth Cooper 520 N. 19th St. One hundred dollars ($100).
    I leave to my Sister Emma Lowry Fagan all my clothing, jewelry, furniture, etc., to be by her disposed of as requested by me privately.
    I leave the rest of my estate to be divided in half one part to be equally divided between my sisters Clara Huddy Fagan, Emma Lowry Fagan and my brother Benjamin Seton Fagan.
    The other part I leave to my dear husband Edwin Hagert Moore as long as he remains single to be held in trust and in case of his marriage or death to revert to my Sisters Clara Huddy Fagan & Emma Lowry Fagan.
    I name as my Executors Edwin Hagert Moore, my mother Eliza Massey Fagan & any other person named by them if desired.
    Witness my hand & seal the Twenty sixth day of May One thousand nine hundred & five.
    At the adjudication of the account of trustees of Emma Huddy, deceased, Edwin Hagert Moore elected to take against his wife’s will. The auditing judge thereupon awarded the whole fund as follows:
    “One half thereof to be divided equally among Clara Huddy Fagan, Emma Lowry Fagan and Benjamin Seton Fagan and the remaining one half thereof to be divided equally between Clara Huddy Fagan and Emma Lowry Fagan.”
    Edwin H. Moore excepted to the adjudication on the ground that the auditing judge had not allowed any of the specific monetary bequests given by Mrs. Moore.
    The court in banc, in an opinion by Lamorelle, J., of its motion, and without any exception raising the point, awarded the whole fund to the executors of Mrs. Moore’s will.

      Error assigned was the decree of the court.

      Fell & Spalding, for appellant.
    The Orphans’ Court had no power to modify the adjudication by revoking the awards to the appellants of its own motion and awarding the balance of the account to the executors of the will of the donee of the power: Stitzel’s Est., 221 Pa. 227.
    When the instrument exercising the power goes into effect the appointee is held to take the estate or property under and by virtue of the original instrument creating the power and not under the instrument of exercise ; the donee in such cases acts merely as the agent of the donor of the power: Com. v. Duffield, 12 Pa. 277; Com. v. Williams, 13 Pa. 29; Pepper’s Est., 120 Pa. 235; Swaby’s App., 14 W. N. C. 553; King’s Est., 14 W. N. C. 77; Howell’s Est., 185 Pa. 350; Dunglison’s Est., 201 Pa. 592.
    The Act of June 4, 1879, has not changed or altered this rule of law: Ashburner’s Est., 2 Pa. D. R. 776; Aubert’s App., 109 Pa. 447; Garman v. Glass, 197 Pa. 101.
    All the cases decided by the Orphans’ Court of Philadelphia County excepting Huey’s Est., 17 Pa. D. R. 1030, may be distinguished from the present case upon the ground that the will of the donee expressly directed the payment of the donee’s debts. No such direction appears in the will of Helen W. F. Moore: Fisher’s Est., 16 Pa. D. R. 151; Brown’s Est., 17 Pa. D. R. 569; Finn’s Est., 18 Pa. D. R. 408.
    April 29, 1912:
    The Orphans’ Courts of Allegheny County and of Montgomery county have not followed the rule adopted by the Orphans’ Court of Philadelphia County: Kensel’s Est., 21 Montg. County Law Repr. 67; Brewer’s Estate, 33 Pitts. Leg. J. (O. S.) 161.
    The rule of the court below, if adopted by this court, will establish the doctrine that wherever a will is construed to be an exercise of a power under the Act of 1879 the estate upon which the power operates is blended with that of the donee for all purposes. This doctrine is erroneous and should be overruled by this court.

      Charles F. Unde, for appellee.
   Opinion by

Mr. Justice Moschzisker,

Emma Huddy died May 23, 1896, and by her will she gave $15,000 in trust, the income thereof to be paid to her granddaughter Helen W. Fagan for life, and “from and immediately after her decease, in trust for such person or persons, and for such estate and estates as she, the said Helen W. Fagan, by her last will and testament shall direct, limit and appoint.” The donee of this power afterwards intermarried with Edwin H. Moore, and died testate, April 6,1910. In her will, after some small pecuniary and specific legacies, she bequeathed one-half of her residuary estate to her husband for life or until his re-marriage, the other half to her sisters and brother, and the remainder after her husband’s life estate to her sisters; she did not direct the payment of her debts, nor did she expressly exercise or refer to the power given her by the will of Emma Huddy.

The trustees of the Huddy Estate filed their account, and upon its audit Edwin H. Moore elected to take against his wife’s will; whereupon the auditing judge awarded the trust fund to the other residuary legatees named in the will, under the Act of June 4, 1879, P. L. 88. But, without acting upon any specific exception raising the point, the court, in banc, on its own motion, modified the adjudication and made the award to the executors of the donee of the power, saying, “The fund should have been awarded to the executors of the will of Helen W. F. Moore and not directly to certain of the residuary legatees;.....creditors, if any, have rights and their claims against the estate of that decedent may be heard only upon the settlement of her estate; and she, by blending her own and that which she appoints, has created a common fund, possibly for all purposes, though certainly for creditors and legatees ;..... In such cases there is nothing by which that which passes under the power can be distinguished from what passes by virtue of ownership.........What rights, if any, the husband who elects to take against the will has in this fund of $15,000 need not now be considered in that the question cannot be determined except upon the audit of the account of the executors of his wife’s will.”

It seems to us that the learned court below misconceived this case. It is not an instance where the donee of the power either expressly or by implication appointed the fund for the payment of her debts, nor did she so blend the fund with her own assets that it is impracticable to pay directly to her appointees. So far as the record shows there is no difficulty in making the payments directly to those now entitled to take under the will of Emma Huddy as designated in the will of the donee of the power. The appointees do not take through the donee; when her will, the instrument exercising the power, went into effect the property vested in them under and by virtue of the original will creating the power: Com. v. Duffield, 12 Pa. 277; Com. v. Williams, 13 Pa. 29; Pepper’s Est., 120 Pa. 235; Swaby’s Appeal, 14 W. N. C. 553. The Act of June 4, 1879, P. L. 88, Sec. 3, in nowise alters the law in this respect; its effect is to make the will of a donee of an unrestricted absolute power operate as an exercise of the power even though no such intention is expressed therein. The law now assumes that such was the intent of the testator unless a contrary intent appears by the will: Aubert’s Appeal, 109 Pa. 447. Since there are sufficient funds in the estate of the donee to pay her pecuniary legacies in full, there is no necessity for applying the Act of 1879 so as to throw them upon the trust fund, and the law will not assume that the donee of the power intended so to exercise it; therefore those to whom she left pecuniary and specific legacies have no interest in this fund, nor under the facts of this case have the donee’s creditors. It is not necessary to decide what the result would be under other circumstances.

The Act of May 4,1855, P. L. 430, Sec. 1, provides that a surviving husband may elect to take against his deceased wife’s will “such share and interest in her real and personal estate as she can, when surviving, elect to take against his will in his estates.” Such an election affects the distribution of the “real and personal estate” of the deceased wife, the husband taking his share of her property as though there was no will; but it in nowise affects the distribution of property thereby directly or incidentally disposed of in the exercise of a power of appointment, for such property is not and never was the “real and personal estate” of the wife. Hence, Edwin H. Moore is entitled to share the trust fund with the other residuary legatees named in his wife’s will.

Even though there was no exception raising the exact point, the court below was within its rights in correcting what it conceived to be a fundamental error in the distribution, and Stitzel’s Est., 221 Pa. 227, rules nothing to the contrary. It might have been better, however, if counsel had been afforded an opportunity properly to present their views before such a radical modification as here made was finally determined upon..

The assignment of error is sustained and the record is remitted to the court below with directions to modify its' decree in accordance with the views herein expressed; the costs to be paid out of the fund.


author: Per Curiam,

text:
    Kantner, Appellant, v. Philadelphia & Reading Railway Co.

      Negligence — Railroads — Passengers—Hand-bag in car aisle— Nonsuit.

    In an action by a passenger against a railroad company to recover damages for personal injuries sustained from falling over a hand-bag that stood at the side of the passageway of a car, a nonsuit is properly entered where the evidence shows that the car was somewhat crowded and dimly lighted; that the plaintiff did not see the hand-bag before her foot struck it, but saw it as she fell, and that there was no proof that the trainmen knew that the bag was in the passageway, nor that it had been there for such a length of time as to charge them with notice.
    Argued March 26, 1912.
    Appeal, No. 255, Jan. T., 1911, by plaintiff, from order of C. P. No. 5, Pbila. Co., March T., 1907, No. 2313, refusing to take off nonsuit in case of Nellie Kantner v. Philadelphia & Reading Railway Company.
    Before Fell, C. J., Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Ralston, J.
    The facts are stated in the opinion of the Supreme Court.
    At the trial the court entered a compulsory nonsuit which it subsequently refused to take off.

      April 29, 1912:

      Error assigned was in refusing to take off nonsuit.
    . Robert T. Byron, with Mm Albert 8. Longbottom, for appellant.

      Wm. Glarke Mason, for appellee.
   Per Curiam,

The plaintiff entered one of the defendant’s passenger cars at its station in Philadelphia at four o’clock in the afternoon of December 22d, and while walking forward, looking for a seat, she was tripped by the hand-bag of a passenger that stood at the side of the passageway. The car was somewhat crowded and was dimly lighted. She did not see the bag before her foot struck it but saw it as she fell. A nonsuit was entered on the ground that it was not negligence to permit hand-bags to be taken into passenger cars and there was no evidence that the trainmen knew that the bag was in the passageway nor that it had been there for such a length of time as to charge them with notice. This ruling is fully sustained by the recent decision in Burns v. Railroad Co., 233 Pa. 304, in which it was said by our brother Elkin : “The mere fact that the personal baggage of a passenger is in the aisle of a car at the exact time of the accident does not of itself raise a presumption of negligence on the part of the employees of the railroad company. While it no doubt is the duty of the employees of a railroad company to remove the personal baggage of passengers from the aisles of cars, they must, in order to make it their duty to act, have notice that such obstructions are in the aisle, or the obstruction must have remained there for so long a time before the accident that, in the exercise of due care, they would have discovered it before the accident occurred.”

The plaintiff’s testimony would not sustain a finding that the car was so dimly lighted that she could not see the bag. She failed to see it when she was hurriedly looking for a seat but she saw it when her foot struck it and she looked towards the floor of the car.

The judgment is affirmed.


text:
    Colket v. Verner, Appellant.

      Waters — Rights of upper riparian owner — Damming stream— Equity.

    1. As against a lower riparian owner, the owner of the lands higher up the stream has the right to have the waters of the stream flow over the lands as they would naturally flow. The lower owner has no right to obstruct the flow of the stream by a dam so as to flood the land of the upper owner, or to raise the level of the water in its bed to his detriment.
    2. Equity will relieve against the obstruction of a stream by the owner of lower land to the injury of the owner of upper land bordering upon it.
    3. Where the trustee of an estate permits a person to occupy land until sold, and such person makes no objection to the backing up of water upon the land because of a dam constructed by a lower riparian owner, and the trustees have no knowledge of the construction of the dam, a purchaser of the land from the trustees has the right to maintain a bill in equity to enjoin the flooding of his land, notwithstanding the acquiescence of the former occupant.
    4. An upper riparian owner may maintain a bill in equity against a lower riparian owner to restrain the maintenance of a dam which was flooding his lands, although he may at one time have polluted the stream with oil and gasoline from his garage, if it appears that as soon as he learned of such pollution he resorted to measures which completely abated the nuisance. The rules that he who would have equity must do equity, and that he who comes into equity must come with clean hands, do not apply to such a case.
    Argued March 27, 1912.
    Appeal, No. 85, Jan. T., 1912, by defendants, from decree of C. P. No. 4, Phila. Co., June T., 1909, No. 1554, on bill in equity in case of Tristram C. Colket v. Harry J. Verner, et al.
    Before Fell, C. J., Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Audenried, J., filed the following opinion.
    Tristram C. Colket, the plaintiff, owns a tract of land which adjoins another tract of land owned by Elizabeth K. Verner, one of the defendants. He alleges, by his bill as amended, that the defendants have within the boundaries of Mrs. Verner’s land erected a dam in the bed of a small stream that flows through both of these properties, and that by reason thereof the water of the stream has been backed over his land to his damage and injury; and he prays that they be restrained from causing the water of the stream to overflow his ground, and from interfering with his use and enjoyment of his property.
    The defendants admit the building of the dam complained of, but deny that it has increased the water in the stream upon the plaintiff’s property, and that they have done damage or injury to the plaintiff.
    Upon the evidence the trial judge finds the facts of the case to be as follows:
    FINDINGS OF FACT.
    1. The plaintiff, Tristram C. Colket, is the owner of about five acres of land in Lower Merion township Montgomery county, Pennsylvania, situate on the northeast side of Morris avenue, near Bryn Mawr. This property was conveyed to him by Frederick A. Dreer, et al., trustees under the will of Ferdinand J. Dreer, his deed bearing date 26th May, 1905. On the land thus acquired Mr. Colket has built a house, in which he resides with his family, consisting Of his wife and several small children. At a point about thirty feet from his southeastern boundary he has constructed and maintains an ornamental pond.
    2. The defendant, Elizabeth K. Verner, is the owner of about six and two-thirds acres of land situate on the northeast side; of Morris avenue, to the southeast of the plaintiff’s land which it adjoins. This property was conveyed to her on 27th April, 1904, by her husband, the defendant, Harry J. Verner, who acquired title to it by deed dated 17th September, 1898, from Edward F. Beale et ux. Upon this tract a house has been built, which at the time of the filing of the bill was occupied by the defendants as a residence. The defendants have constructed and maintain a fish pond on the northwest side of their property, at no great distance from the plaintiff’s land.
    3. Mrs. Verner’s land lies lower than that of the plaintiff. A small brook which rises in the lawn of Mr. Wayne MacVeagh and flows into Mill Creek, runs in a southerly direction across both properties, passing first through the Colket tract. By this stream, whose natural bed in few places exceeded eighteen inches in width, and whose depth was rarely greater than three inches, both of the ponds above referred to are supplied with water. The plaintiff’s pond was constructed by widening and slightly deepening the original bed of the stream and throwing a dam across it. The defendants’ pond was constructed by making an excavation in the earth to the east of the stream, from which the water necessary to fill and replenish it is conveyed to it by means of an underground pipe. This pond was constructed in 1904 or 1905.
    [4. In order to raise the level of the stream to a height sufficient to make it possible to draw from it a supply of water for their pond, the defendants have built a dam across the brook at a point about thirty-five feet southeast of the plaintiff’s line. The effect of this has been to back up the water over the plaintiff’s land as far as tb.e dam maintained by him, and to increase the depth of that portion of the stream between his dam and the fence that separates the two properties about twenty-two inches. The result of this deepening of the water has been to make the stream overflow the bed that it originally occupied, and fill the entire space between the two sides of the gully through which it formerly meandered, so that now between the party line and Mr. Colket’s dam the stream is from ten to twelve feet wide and a little more than two feet deep.] .
    [5. The raising of the level of the stream to the southward of the plaintiff’s dam has made it impossible for him to empty his pond and clean it out, because the surface of the water below the dam is much higher than the bottom of the pond.
    During the Summer season a scum, consisting of a fungus or vegetable growth of some kind, appears on the surface of the water, backed up below the plaintiff’s dam. Its presence at this point is due to the defendants’ interference with the natural flow of the water. The scum, so-called, emits a disagreeable, sickly odor.
    The steepness of the banks that confine the water that the defendants have backed up over the plaintiff’s land, in conjunction with the present depth of the stream, renders the space between the plaintiff’s dam and the defendants’ land a place of danger for small children.]
    6. In the year 1898 the defendant, Harry J. Verner, built a dam across the stream near the point where the dam of which the plaintiff complains now stands. This was not as high as the present dam, and did not back up the water of the stream over what is now the plaintiff’s land. Into the pond thus formed large quantities of earth, &c., were brought down from the lands higher up the stream whenever freshets occurred. On a number of occasions, in order to maintain his pond, Mr. Verner was obliged to clean it out and cart away the earth removed from it. After this had continued for several years he caused a stone wall to be built across the stream at his boundary line in order to catch and hold the earth and debris brought down by the water, and thus prevented the filling up of the pond. The wall was of riprap — that is, it was made of stones laid without mortar or cement. This structure was several times washed away, but was rebuilt each time in the same manner. The flow of the water was not interfered with by the riprap just mentioned.
    7. Later, in 1901 or 1905, when the defendants’ present pond was constructed, their original dam, the dam built by Mr. Yerner in 1898, was abandoned, and the riprap work at the point where the stream crossed their boundary line was replaced by a concrete wall. This held back the water, and, to a certain extent, flooded the land above it. From the water thus dammed up the Verners drew the supply for their new pond by means of a pipe. These arrangements were made a short time prior to the purchase by Mr. Colket of the adjoining property. The land now owned by the plaintiff was then part of a tract occupied by a family named Schalliol, who, upon condition that they would keep the buildings and fences in repair and pay the insurance premium and the taxes upon it, had the right, under the will of their uncle, Ferdinand J. Dreer, its former owner, to live upon it rent free until it should be sold by the trustees, who were by Mr. Dreer’s will vested with the power to dispose of it. To the backing up of the water by the defendants over the land that they occupied the Schalliols made no objection, but it does not appear that either they or the trustees under Ferdinand J. Dreer’s will ever formally consented thereto.
    [8. After the plaintiff acquired title to the land formerly occupied by the Schalliols, he protested to Mr. Verner against the backing up of the water of the stream over his property by the dam maintained on the boundary by the defendants. Negotiations ensued, which ended in the plaintiff’s giving consent that this dam should remain until he called for its removal. The terms of the arrangement entered into between the parties are set out in a memorandum- signed by Mr. Yerner. This reads as follows:

      “December 22, 1905.
    “In view of the fact that Tristram C. Colket has permitted me to retain a dam backing the water on his property adjoining me at Bryn Mawr, I agree at his request, to remove the said dam within thirty days. I also agree to allow him to remove the plug in my dam in order to empty the water out of his dam.
    “H. J. Verner.”
    In making this agreement Mr. Verner undoubtedly intended to act for his wife as owner of the land involved, and Mrs. Verner has ratified and confirmed all that he did in the matter.]
    9. About September 1st, 190.8, the plaintiff, acting under the agreement of December 22d, 1905, notified the defendants of his desire that they should remove the dam maintained at the boundary line. With this request they complied, and that dam was demolished. All that remains of it are the wings, which, extending into the banks of the stream, were permitted to remain in order to support them. They in no wise interfered with the flow of the water. After several attempts by the defendants to obtain a supply of water for their pond through pipes either from the bed of the brook or from the plaintiff’s pond had failed, in order to provide such water supply they built the dam of which the plaintiff now complains.
    [This is situated about thirty-five feet from the boundary , line. It is higher than the concrete wall that was torn down, and it has backed up the water on the plaintiff’s land to a greater depth than that did.]
    10. At one time in the Summer of 1908 the refuse gasoline and oil from the plaintiff’s automobile garage escapéd into the stream and so polluted the water that five hundred and fifty of the defendants’ fish died by reason thereof. There is no evidence to indicate the value of these fish, if they had a value. No claim has been made by the defendants on the plaintiff for compensation for this loss; but immediately that the plaintiff was informed that his men were polluting the stream, he constructed a “French drain” to receive the obnoxious matter, and has thus prevented further trouble from this source.
    11. Whenever the plaintiff empties his pond the flow of water in the stream below the dam is checked when the dam is closed again until the pond is completely filled. It is not shown that the flow of the water was in this way stopped with undue frequency, and its stoppage for this purpose is not unreasonable.
    The law applicable to these facts is as follows:
    FINDINGS OF LAW.
    1. Aqua curret et debet currere ut usquam.
    2. As against a lower riparian owner, the owner of the lands higher up the stream has the right to have the waters of the stream flow over his lands as they would naturally flow. The lower owner has no right to obstruct the flow of the stream by a dam so as to flood the land of the upper owner, or to raise the level of the water in its bed to his detriment: M’Calmont v. Whitaker, 3 Rawle 84; Bell v. M’Clintock, 9 Watts 119; Keller v. Stoltz, 71 Pa. 356; Knoll v. Light, 76 Pa. 268. Such a right, however, may be acquired by the owner of the lower land under grant from the owner of the land above him, or by prescription.
    [3. The defendants have shown no grant from the plaintiff or his predecessors in title, that authorizes them to back up the waters of the stream over the land adjoining theirs to the northwest.
    The failure of the Schalliols to object when the concrete wall constructed at their boundary line threw the water back over the land that they occupied was not a grant. Even so far as they were concerned, and under that view of their conduct most favorable to the defendants, the silence of the Schalliols amounted to nothing more than a license, which might at any time have been revoked. The Schalliols, moreover, had no power to convey the land that they occupied, or grant any rights in it to endure beyond the time when it should be sold by the trustees of Ferdinand J. Dreer. The sale of the property by the latter divested it of all encumbrances, estates or interests created by the act of the cestui que trustent, and passed the title of the land to the purchaser in the same condition in which it was when Mr. Dreer died, except so far as it may have been changed by act of the trustees themselves. It is not pretended that Dreer’s trustees knew anything about the damming back of the water of the stream by the defendants, and no question of the ratification by them of the giving of the license by the Schalliols so to do can possibly arise.
    The agreement between Mr. Colket and Mr. Verner on December 22d, 1905, amounted to nothing but a license by Mr. Colket, which, under its express terms, might be revoked on thirty days’ notice to Mr. Vernér.]
    4. The defendants have acquired by prescription no right to flood the plaintiff’s land. Mr. Verner first constructed a dam in 1898, eleven years only prior to the filing of the bill; and the dam then constructed caused no overflow of the water on the plaintiff’s property. It was not until 1904 or 1905, when the concrete wall was built on the boundary line, that the water of the stream was first backed upon the land now belonging to Mr. Colket.
    [5. The backing of the water of the stream upon the plaintiff’s land by the dam last constructed by the defendants constitutes an invasion of the plaintiff’s rights.]
    6. Equity will relieve against the obstruction of a stream by the owner of lower land to the injury of the owner of upper land bordering upon it: Beech v. Ruder, 15 Pa. Superior Ct. 89.
    [7. Neither the principle that he who would have equity; must do equity, nor the rule that he who comes into equity must come- with clean hands, stands in the way of granting the plaintiff’s prayer for relief. It has not been shown that his own interference with the flow of the stream is unreasonable; and it appears that as soon as he learned that the oil and gasoline from his ■garage were polluting its waters he at once resorted to measures which completely abated that nuisance. For compensation for the loss of their fish caused by the oil and gasoline that got into the water the defendants have made no claim on Mr. Colket.]
    April 29, 1912:
    8. The plaintiff is entitled to a decree enjoining the defendants, and all claiming under them, from maintaining in the stream flowing through their land any dam or other obstruction of such height as to back up the waters thereof and cause them to overflow his adjoining land, and further enjoining the defendants from preventing the free and natural flow of water down said stream from and off of his land. The costs of the cause should be paid by the defendants.

      Error assigned was decree warding injunction.

      Samuel H. Kirkpatrick, with him Joseph G-. Lester, for appellants:
    Rerick v. Kern, 14 S. & R. 267; Swartz v. Swartz, 4 Pa. 353; Big Mountain Improvement Co.’s App., 54 Pa. 361; MeKellip v. McIlhenny, 4 Watts 317; Campbell v. McCoy, 31 Pa. 263; LeFevre v. LeFevre, 4 S. & R. 241; M’Calmont v. Whitaker, 3 Rawle 84; Brown v. Bush, 45 Pa. 61.

      Sepburn, Garr & Krauss, for appellee.
   Per Curiam,

The decree is affirmed at the cost of the appellant on the findings of fact and law by the learned judge of the Common Pleas.


text:
    Commonwealth v. Pflaum, Appellant.

      Constitutional law — Title of act — Classification — Discrimination — Food law — Confectionery — Act of May 18, 1909, P. L. 580.

    1. The Aet of May 13, 1909, P. L. 520, entitled “An act relating to food; defining food; providing for the protection of the public health,” etc., is sufficiently comprehensive in the title to give notice of a prohibition against adding sulphur dioxide to confectionery, inasmuch as confectionery is a food.
    2. The fact that the act provides that in the preparation of dried fruits and molasses, sulphur dioxide may be used in quantities not detrimental to health, does not render the act unconstitutional as violating Art. Ill, Sec. 7, of the Constitution; nor is the act open to the objection of wrongful classification and discrimination because it relieves retail dealers from prosecution, where they sell under a guaranty signed by the manufacturer or a wholesale dealer.
    3. A person may be convicted under the Act of 1909 of selling confectionery to which sulphur dioxide has been added, where it appears that the sulphur dioxide was added to gelatine in the bleaching process, and that the gelatine was then added to other constituents to compose the confectionery which the defendant sold.
    Argued April 8, 1912.
    Appeal, No. 148, Jan. T., 1912, by defendant, from judgment of Superior Court, Oct. T., 1911, No. 218, reversing judgment of Q. S. Pbila. Co., March T., 1911, No. 747, arresting judgment on verdict of guilty in case of Commonwealth v. Christian Pflaum, Jr.
    Before Fell, C. J., Brown, Mestrezat, Stewart and Moschzisker, JJ.
    Affirmed.
    Appeal from judgment of Superior Court.
    Henderson, J., filed the following opinion:
    The defendant was convicted on the first and second counts of an indictment which charged him with selling confectionery which contained sulphur dioxide, in violation of the Act of May 13, 1909, P. L. 520. This act is entitled “An Act relating to food; defining food; providing for the protection of the public health and the prevention of fraud and deception by prohibiting the manufacture or sale, the offering for sale or exposing for sale, or the having in possession with intent to sell of adulterated, misbranded or deleterious foods; prescribing certain duties for the Dairy and Food Commissioner in reference thereto; and providing penalties for the violation thereof.” The indictment was drawn under the fifth paragraph of the third section of the act, which declares that any article of food shall be deemed to be adulterated: “Fifth. If it contains any added sulphurous acid, sulphur dioxide or sulphites, benzoate acid or benzoates except as hereafter provided; or if it contains boric acid or borates, salicylic acid or salicylates, formaldehyde, hydrofluoric acid or fluorides, fluoborates, fluosilicates or other fluorine compounds, dulcin, glucin, saccharin, alum, compounds of copper, betanapthol, hydronapthol, abrastol, asaptol, oxides, of nitrogen, nitrous acid or nitrates, pyroligenous acid, or other added ingredients deleterious to health; or if, in the case of confectionery, it contains any of the substances mentioned in this paragraph, or any mineral substance, or injurious color or flavor, alcoholic liquor, or any other ingredient, not herein mentioned, deleterious to health:......And provided further that in the preparation of dried fruits and molasses, sulphur dioxide, either free or in simple combination may be used in such quantities as will not render said dried fruits or molasses deleterious to health.” On motion of the defendant the learned judge of the Quarter Sessions arrested the judgment for the reason that the evidence did not show that sulphur dioxide had been “added” to the confections sold by the defendant, and from the opinion filed the learned judge seems to have entertained the view that the act was unconstitutional as applied to confectionery which did not contain “added” dioxide of sulphur or other adulterant. The first objection raised by the defendant was that the title to the act is defective in that confectionery is not specified as one of the subjects legislated about. This implies that confectionery is not food, and such is the contention of the appellee. The act not only relates to food, but the title indicates that the intention was to define what food is. That the legislature may define the terms it uses and the meaning which it attachés to words cannot be doubted. Where the meaning given in the act is not that which attaches to them in the common understanding the title of an act should express any exceptional meaning with sufficient clearness to excite inquiry as to the provisions of the act, and this was evidently in the legislative mind when the title to the act was framed. Notice is given in the title of the intention to define the term “food.” The title to the act to which Com. v. Kebort, 212 Pa. 289, related was different in form, and contained no notice of the definition of the term “food” set forth in the body of the statute. That case is not an authority, therefore, in support of the appellee’s position, even if a definition of the word were necessary as applied to candy and other confectionery. It was held in Com. v. Kebort, that the term “food” did not include drink; that there was a generic distinction which had been recognized in the thought and speech of the race from time immemorial, and that the word “food” did not include in the popular understanding drink also, and that, therefore, liquors were not included in the prohibitions of the Act of June 26, 1895, P. L. 317. That the word “food” is a very general term, and applies to all that is eaten for the nourishment of the body cannot be questioned. It is so understood generally, and the authorities whose accuracy is relied upon in all departments of investigation concur in that definition. “Nutritive material absorbed or taken into the body for the purpose of growth or repair, or for the maintenance of the vital processes.” — Webster. “That which is eaten or drunk for nourishment, ailment; nutriment, in thé scientific sense. Any substance that, being taken into the body of an animal or plant, serves, through organic action, to build up normal structure or supply the waste of tissue; nutriment.” — Standard Dictionary. “Whatever supplies nourishment to organic bodies; aliment; victuals; provisions.” — Century Dictionary. “It seems not a debatable question whether confections are within these definitions. No one could contend that sugar and honey are not food, or that preserved fruits and chocolate are not nutriment, and these constitute the great bulk of the confectionery manufactured and sold. The enormous consumption of the materials which enter into the composition of confectionery and the value which they have in the economy of nutrition are so well known that it is not necessary to enter into a discussion of their scientific value, nor the relation they bear to the food supply of the human race. That the term “food” includes candy, sweetmeats, preserves and other confectionery, accords with the opinions of lexicographers, chemists, and the public understanding, but if this were not so, as the legislature might include confections in the catalogue of foods, and has so done in this case, and has given notice in the title of the act that it contained a definition of the things to which the statute applied, all interested are put on inquiry as to matters therein contained, and a title which leads to inquiry is sufficient in this respect. We need not refer to the numerous cases which hold that it is not necessary that all the distinct provisions of a statute be set forth in the title, and that it is sufficient if that give notice of the subject of the act so as reasonably to lead to an inquiry as to what it contained in the body of the bill. Whatever the subject of a title reasonably suggests as appropriate to the accomplishment of the object declared is sufficiently indicated by such title. “Every possible presumption is in favor of the validity of a statute, and this continues until the contrary is shown beyond a rational doubt. One branch of the government cannot encroach on the domain of another without danger” : Sinking Fund Cases, 99 U. S. 700; Powell v. Penna., 127 U. S. 678 (8 Superior Ct. Eepr. 992, 1257); Sugar Notch Boro., 192 Pa. 349.
    The statute under consideration is a police regulation. It has to do with the public health, which is one of the chief objects of government and a proper subject of legislative control. The power of the legislature to promote the general welfare is extensive, and it may exercise a large discretion in determining how that power shall be employed. What the interests of the public require and what measures are necessary to protect them are subjects for the exercise of this discretion. Whether in a given instance the manufacture and sale of an article intended for human consumption is deleterious to health, and whether the public welfare demands that such business be prohibited, are questions of fact and policy exclusively for the determination of the legislature. It is an elementary proposition that all property in this State is held under the implied obligation that the owner shall not use it to the injury of the community. The legislature has declared that sulphur dioxide is deleterious to health, and has forbidden its use in the manufacture of confectionery. We must assume that this determination was reached after full examination and on reasonable grounds, and that in the judgment of a body having control of the subject, such prohibition was necessary to promote the public health.
    It is contended, however, that the statute discriminates as to all other food except confectionery and in favor of dried fruits and molasses and that it violates the 7th Section, of Article III, of the Constitution of Pennsylvania for that reason. Whether these distinctions have been incorporated in the statute was a legislative question. It was clearly ^within the power of the legislature to prohibit the use of sulphur dioxide or any other poison in all of the articles entering into the food supply of the citizens of the Commonwealth and under the same power it might limit the prohibition to one class of food and not to another: Crowley v. Christensen, 137 U. S. 86 (11 Superior Ct. Repr. 13); Davis v. Mass., 167 U. S. 43 (17 Superior Ct. Repr. 731). It is not necessary in the exercise of the police power that legislation be directed against all subjects prejudicial to the public welfare. This statute might have operated only on confectionery or flour or sugar. At the same session of the legislature separate acts were passed with reference to fresh eggs, lard, ice cream and milk and cream, and numerous other similar statutes were enacted at other sessions of the legislature. The same discretion which permitted the enactment of a prohibitory law as to one article of food might exempt another from the prohibition. It is permissible to classify in such a case, reference being had to the character of the food, the form in which the adulterant is used and the extent to which the food is consumed. The legislature had these considerations in mind doubtless in the case of dried fruits and molasses. We cannot declare judicially that sulphur dioxide in the limited quantities permitted in the case of these two articles would affect the public health. Certain it is that they are not used to the extent to which confectionery preparations are used. No constitutional obligation rests on the legislature to subject every article of food to the same regulation. It. is easy to conjecture reasons which may have led the legislature to place dried fruits and molasses in the same category and it is our duty to assume that such consideration influenced that body. The fact, too, that it was provided that where sulphur dioxide in quantities not deleterious to health was used in the preparation of dried fruits and molasses notice that it had been so used must be plainly stated on each package suggests that the legislature recognized that sales of these articles are generally made to adults or persons able to understand that notice which the package must contain, whereas a very large proportion of the confectionery made in the country is sold to children who consume it without knowledge or discretion as to its constitutents. And these considerations apply as well to the objection that the presence of sulphur dioxide in confectionery is forbidden, whereas in the case of the other foods the adding of that substance is only prohibited. What the legislative thought was in making this distinction is not expressed but it is not difficult to see that it is based on substantial grounds. The evidence shows that gelatine is largely used in the manufacture of confectionery and that in the preparation of it large quantities of sulphur dioxide are used; that in much of the gelatine this chemical is not removed but remains in it when distributed by the manufacturers for consumption. This is doubtless the result of carelessness or cupidity and a condition difficult to guard against on the part of the health authorities. It is not shown that sulphur dioxide enters in any appreciable degree into the natural composition of other foods. It may have been as the result of accurate knowledge on the subject that added sulphur dioxide was prohibited in the one case and whether “added” or not, in the other.
    Objection is made to the enforcement of the statute because of that part of section five which provides: “But no prosecution shall be sustained, under the provisions of this act, against a retail dealer for the selling, offering for sale, exposing for sale, or having in possession with intent to sell, or any adulterated or misbranded article of food as defined herein, if the retail dealer from whom the said article of food, sample, or portion thereof, was obtained by the Dairy and Food Commissioner or his agent, can establish a guaranty, signed by the manufacturer or wholesale dealer, or jobber or distributor, residing in the United States, from whom such article of food was purchased or procured, to the effect that the same is not adulterated or misbranded within the meaning of this act designating it.” This is said to be classification and discrimination. It will be observed, however, that it is not discrimination in favor of the sale of the adulterated products. The prohibition of them is general. It applies to all classes of dealers and declares the use of the poisonous ingredient to be unlawful. The reason for this exemption from prosecution is apparent. The transactions of manufacturers and wholesale dealers are with large quantities and they have an opporthnity to know the composition of their merchandise. The retail dealer who buys his stock in small quantities is in a very different situation. He has neither knowledge nor means of knowledge of the ingredients composing the article which he buys. He must rely in the first instance on the honesty of the wholesale dealer. Where he has a guaranty from such dealer as to the purity of the goods purchased there is a reason for protecting him from the penalty of a sale without notice of the character of the commodity. The classification between wholesale and retail dealers is a very obvious one and has been sustained in numerous cases. The Act of April 22, 1846, P. L. 486, relating to tax on dealers in merchandise distinguished between those who sold goods of their own manufacture at their manufactories and those who sold other wares than those of their own manufacture. This act was considered in Norris v. Com., 27 Pa. 494. The Act of May 2,1899, P. L. 184, classified dealers into four classes and it was sustained in Knisely v. Cotterel, 196 Pa. 614, where the court said: “The division of vendors into wholesale and retail is perhaps the most obvious and familiar that could be made.” “Classification is a legislative question subject to judicial revision only so far as to see that it is founded on real distinctions in the subjects classified, and not on artificial or irrelevant ones:” Seabolt v. Commissioners, 187 Pa. 318. This case involved the construction of the Act of May. .6, 1897, P. L. 46, classifying public bridges. The classification of telegraph companies was held valid in Western Union Tel. Co. v. Milling Co., 218 U. S. 406. Distinction between jobbers and wholesale dealers in cigarettes and between wholesale and retail dealers in leaf tobacco and liquors was sustained in Cook v. Marshall Co., 196 U. S. 261 (25 Sup. Ct. Eepr. 233). The same principle was applied in S. W. Oil Co. v. Texas, 217 U. S. 114 (30 Sup. Ct. Eepr. 496), under a statute which provided for penalties for violation thereof. There is substantial ground, therefore, for the distinction made between wholesale and retail dealers as to the imposition of the penalty provided by the statute.
    The fact is not to be overlooked, however, that the defendant is a wholesale dealer and as to that class of merchandise the act is complete. The exception as to dried fruits and molasses and the exemption of retail dealers who sold ignorantly on a guaranty did not affect him. The broad terms of the act declare it to be unlawful to sell confectionery containing the prohibited adulteration. The legislature having power as we have seen to enact this prohibition the defendant is not relieved by the consideration that some other article of merchandise is not in the same class or. that retail dealers who sell on the representation of the wholesale dealer as to the purity of the goods are not to be visited with the penalties of the act for the first offense. The exceptions referred to are not of such import that without them the other sections of the act would cause results not contemplated or declared by the legislature: New York, ex rel. Hatch v. Eeardon, 204 U. S. 152 (27 Sup. Ct. Eepr. 188); Connolly v. Sewer Pipe Co., 184 U. S. 540 (22 Sup. Ct. Eepr. 431). As affecting this case it is not important whether the sulphur dioxide was “added” to the candy as a separate constituent or was there because it was in one of the ingredients entering into the composition of the confectionery for under the first count of the indictment, as we have seen, a sale of the merchandise containing this ingredient is prohibited whether it be separately added or not and the conviction could be sustained on that count. We think that the evidence warranted the submission of the case to the jury on the second count. It shows that sulphur dioxide is not a natural content of any of the material used in the manufacture of the confectionery. There was evidence, however, that traces of sulphur dioxide may appear in some natural food products because of sulphur existing therein which may account for such traces. This could be considered as having a natural origin and if it existed would not be “added” within the meaning of the act. It may be that minute quantities of other prohibited substances are naturally developed in other foods but this is not the condition to which the statute has reference. The purpose is clear. No one is permitted to take sulphur dioxide and add it to a completed product or to put it into one constituent of a product and in combination with others make an article of food, with the exception of dried fruits and molasses. It is not disputed that sulphur dioxide may be combined with gelatine in the bleaching process and that is shown to be the manner in which it found its way into the goods of the defendant. It was added to the gelatine and the gelatine was combined with sugar and other constituents to compose the candy which the defendant sold. It would be too narrow a consideration of the act to hold that a prohibited element introduced into a manufactured product in the manner described by the Commonwealth’s witness was not added. It is not necessary for the Commonwealth to show that the defendant knew that his merchandise contained the prohibited substance: Com. v. Farren, 91 Mass. 489; Powell v. Com., 114 Pa. 265. It may be as contended by the learned counsel for the appellee that the law bears heavily on a person so situated but that is a result of the exercise of the police power in very many instances. From the necessity of the case special burdens are often borne for the general benefit. Regulations promoting the public welfare may press with greater weight on one than upon another but the purpose is not to impose unequal or unnecessary restrictions upon one but to promote the general good: Barbier v. Connolly, 113 U. S. 27 (5 Sup. Ct. Repr. 357); Fischer v. St. Louis, 194 U. S. 361 (24 Sup. Ct. Repr. 673). It is not a relevant matter that in the opinion of the defendant or his witnesses the confections which he sold were wholesome and not deleterious to health. The quality of the particular merchandise does not affect the constitutionality of the act. Its object is the promotion of the public health by the method deemed best by the legislature. To decide that because some of the products affected by the statute were wholesome the law could not be enforced would undermine the police power of the State and overthrow every statute the wisdom of which would not bear judicial scrutiny: Powell v. Com., 114 Pa. 265; Powell v. Penna., 127 U. S. 678 (8 Sup. Ct. Repr. 992, 1257). No one pretends that sulphur dioxide is necessary or desirable in confectionery. The most that can be said is that in very small quantities it is not shown to be prejudicial. • No one has a natural or a constitutional right to put poison in confectionery or other foods and the beneficial object of the statute under consideration ought not to be defeated except by clearly convincing reasons.
    We are not persuaded that any of the objections presented are sufficient to justify the conclusion that the act is unconstitutional.
    The judgment is reversed and the record remitted to the court below to the end that sentence be imposed on the verdict in accordance with the law.

      Error assigned was the judgment of the Superior Court.

      Frank P. Prichard, with him Thomas E. Lannen, for appellant..

      April 29, 1912:

      Wm. M. Hargest, Assistant Deputy Attorney General, witll him Samuel B. Rotan, District Attorney, and E. G. Rhoades and John G. Bell, Attorney General, for appellee.
   Per Curiam,

In the opinion of a majority of this court the judgment appealed from should be affirmed for the reasons stated in the opinion of the Superior Court.

Judgment affirmed.


text:
    Goldstein v. Hammell, Appellant.

      Wills — Construction — Survivorship—Joint tenancy.

    1. Where a testator gives to his wife and to his daughter the rents of real estate “share and share alike for and during the term of their natural lives,” the daughter to inherit the share of the mother and after the death of the daughter the real estate to go to the daughter’s children, and if the daughter should die without leaving children then all the properties are to go to testator’s brother, if the daughter dies in the lifetime of the mother the brother will be entitled to half of the rent inasmuch as the title vested in him on the death of the daughter.
    2. Where there is a devise to two or more by name without a clear intention to vest the estate in the survivor the estate will be held to vest severally.

      Parent and child — Adoption — Wills—After-horn children — Acts of April 8, 1888, P. L. 2Jf9j May k, 1855, P. L. 1¡S0, and April 2, 1872, P. L. 81.

    3. Children adopted either under the Act of May 4, 1855, P. L. 430, or under the Act of April 2, 1872, P. L. 31, are not entitled to any rights in their adopting parent’s estate, where the adoption took place after the adopting parent had executed a will. The Act of April 8, 1833, P. L. 249, relating to after-born children has no application to adopted children.
    Argued April 8, 1912.
    Appeal, No. 149, Jan. T., 1912, by defendant, from judgment of Superior Court, Oct. T., 1911, No. 6, affirming order of C. P. No. 5, Phila. Co., June T., 1910, No. 2129, making absolute rule'for judgment for want of a sufficient affidavit of defense in case of Charles Goldstein v. Mary Hammell.
    Before Fell, C. J., Brown, Mestrezat, Stewart and Moschzisker, JJ.
    Affirmed.
    Appeal from Superior Court.
    Henderson, J., filed the following opinion !
    The plaintiff’s action is based on a title created by the second and third clauses of the will of Zachariah Goldstein, as follows:
    “Second. — I give and bequeath to my wife Mary Goldstein and to my daughter Catherine Goldstein Heron the rents of all my other properties (real estate after the taxes and expenses accruing from said properties are deducted) share and share alike for and during the terms of their natural lives, the daughter, Catherine Goldstein Heron, to inherit the share of the mother, Mary Goldstein, and after the decease of my daughter Catherine Goldstein Heron, I give and devise the properties mentioned in the second item to her children to do as they choose with them.”
    “Third. — If my daughter Catherine Goldstein Heron should die without leaving any children I give and bequeath all the properties mentioned in the second item to my brother Charles Goldstein, his heirs and assigns forever.”
    After the will was made the testator and his wife executed a declaration of deed intended to effect the adoption of a child, Helen Kitchen. This was done with the consent of the surviving parent of the child, and the instrument was recorded in the office for the recording of deeds in the city of Philadelphia. The testator died on the twenty-fifth day of June,' 1898, without having made any change in his will and without having provided for Helen Kitchen. Catherine Goldstein, one of the legatees mentioned in the second paragraph of the will, died in November, 1902, without issue. After the death of Catherine the defendant collected the rent for the real estate described in the second paragraph of the will, and used the same for the support of herself and Helen Kitchen. This action was brought to recover the share which the plaintiff alleged to be due to him as legatee under the third paragraph of the will. The appellant contends, first, that a survivorship existed in her favor after the death of Catherine Goldstein, and that any right which the plaintiff might have to one-half the rent would not exist until after the appellant’s death. We are not convinced that by any proper construction of the will it can be made to appear that it was the testator’s intention to confer a joint estate on his widow and daughter during their lives, and that the share of her who died first should be enjoyed by the survivor during the life of the latter. The bequest to these legatees is “share and share alike for and during the term of their natural lives,” and in the event of the death of Catherine Goldstein, then the properties mentioned in the second paragraph were to go to her children to do as they chose with them. In the contingency that Catherine died without children, then the plaintiff became entitled to her share of the property disposed of in the second clause. Joint tenancies are not favorites of the law, and such a construction ought to be favored as would make the estates vest severally. Where there is a devise to two or more by name without a clear intention to vest the estate in the survivor, the estate will be held to vest severally: Kennedy’s Appeal, 60 Pa. 511. In the absence of words showing an intention to create a joint tenancy irrespective of the Act of March 31, 1812, 5 Sm. Laws 395, legacies to persons separately distinguished by their names show an intention to give each his share. In Evans v. Brittain, 3 S. & B. 135, the words “to be divided in equal portions” were held to create a tenancy in common, and not a joint tenancy. The use of the words “share and share alike” is indicative of the same intention: Kerr v. Verner, 66 Pa. 326, and Jones v. Cable, 111 Pa. 586, are cases where the language of the wills indicated that the remainder over was to take effect after the death of the first takers. The interests, however, were only to vest after the death of all first takers. Where there was a devise to two and a remainder over after “their” death, it is reasonably plain that the testator contemplated the vesting of the remainder after the death of each of the life tenants. But the language of the will under consideration leaves no room for such a construction. The appellee was constituted the remainderman by the third paragraph of the will and the title vested in him on the death of Catherine. As he took the title to the property, he became entitled to his share of the rent. It was not necessary to make a special mention of the rent in the case of the remainder because the rent and the title vested in the same person.
    It is claimed in the second place that the effect of the adoption deed signed by the testator was to revoke the will as to Helen Kitchen and give to her a share in his estate and thus exclude the plaintiff’s claim as set up, under the fifteenth Section of the Act of April 8, 1833, P. L. 249, which provides:
    “When any person shall make his last will and testament and afterwards shall marry or have a child or children not provided for in such will, and die, leaving a widow and child, or either a widow or child or children, although such child or children be born after the death of their father, every such person so far as shall regard the widow or child or children after-born, shall be deemed and construed to die intestate and such widow, child or children shall be entitled to such purparts, shares and dividends of the estate real and personal of the deceased, as if he had actually died without any will.”
    Assuming that the adoption was accomplished by the testator and his wife under the Act of April 2? 1872? P, L. 31, with the force and effect of an adoption under the Act of May 4, 1855, P. L. 480, to which the former was a supplement it does not follow that the Act of 1833 is to be given the effect claimed for it. That statute having been passed before the Act of 1855, manifestly had no reference to conditions created by the latter statute. At that time there was no provision either at common law or under the laws of this Commonwealth, by which a person could adopt the child of another as his own. Authority to do this was first given by the Act of 1855: Ballard v. Ward, 89 Pa. 358. The language of the fifteenth section of the Act of 1833 shows that the persons intended to be benefited thereby were the widow and children of the testator. Now an adoption does not make the person adopted a child of the adopter and the act of assembly could not malee him such. The person adopted only becomes a child and heir of the person adopting him as to rights of inheritance and the mutual duties and obligations imposed by law. There is nothing, therefore in the Act of 1855 or its supplement of 1872 which in terms amends the fifteenth section of the Act of 1833 so as to make it apply to adopted children. The right of inheritance is purely statutory and he who claims a share in the inheritance must point to the law which transmits it to him. The provisions of the section referred to were only made to apply to the widow or after-born children. The Act of 1855 has not the effect to put an adopted child in all respects in the relation of a child in fact. This was shown in Com. v. Nancrede, 32 Pa. 389, in which it was held that the Act of 1855 did not exempt an adopted child from the payment of a collateral inheritance tax. By the decision in Phillips Est., 17 Pa. Superior Ct. 103, it was held that the twelfth Section of the Act of 1833 relating to lapsed legacies does not apply to children adopted under the Act of 1855; and in Burnett’s Est., 219 Pa. 599, the question was whether an adopted child could inherit from collateral kindred of the adopted parents. Our conclusion is that the fifteenth Section of the Act of 1833 was not enlarged by the Act of 1855 and its supplements and that for that reason the adopted daughter of the defendant is not entitled to the share of the decedent’s estate claimed for her in the affidavit of defense.
    April 29, 1912:
    The judgment is affirmed.

      Error assigned was the judgment of the Superior Court.

      William, A. Carr, with him W. Horace Hepburn and Sidney L. Krauss, for appellant.

      Louis L. Tafel, with him Michael J. Byan, for appellee.
   Per Curiam,

The judgment of the Superior Court is affirmed on [the opinion of Judge Henderson.,