text:
    Keiser v. Eberly, Appellant.

      Appeals — Assignments of error — Exceptions.
    1. A refusal to enter a compulsory nonsuit is not assignable for error.
    2. An assignment of error to the refusal of a point will be dismissed where it appears that no exception was taken to the refusal.
    3. An assignment of error raising more than one distinct question will not be considered.
    4. If the refusal of the court to enter judgment for the defendant non obstante veredicto is to be assigned for error there must have been an exception taken to the court’s action in refusing judgment.
    Argued May 18, 1909.
    Appeal, No. 107, Jan. T., 1909, by defendants, from judgment of C. P. York Co., Jan. T., 1908, No. 19, on verdict for plaintiff in case of George F. Keiser v. Minerva E. Eberly, trading as The Wilbur A. Eberly Wheel Works.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.

      October 11, 1909:
    Trespass to recover damages for personal injuries. Before Bittenger, P. J.
    Verdict and judgment for plaintiff for $1,870. Defendant appealed.

      Errors assigned were in the following form:
    1. The learned court erred in refusing to enter a compulsory nonsuit after the evidence of the plaintiff had been closed.
    2. The learned court erred in refusing the fourth point submitted in writing by the defendant, which point was as follows: “4. Under the facts and the law, the verdict should be for the defendant.”
    3. The learned court erred in not giving binding instructions for the defendant at the trial of the case.
    4. The learned court erred in overruling the defendant’s motion for judgment non obstante veredicto and in overruling the motion for a hew trial and dismissing the rule at the cost of the defendant.
    5. The learned court erred in directing judgment to be entered for the plaintiff.

      N. S. Ross, with him H. C. Brenneman, for appellant.

      John A. Hoober, for appellee.
   Per Curiam,

If there is any error in this record calling for a reversal of the judgment in favor of the plaintiff below, it has not been brought to our notice by any one of the five assignments. From Bavington v. Pittsburg and Steubenville Railroad Co., 34 Pa. 358, to Wallace v. Jameson et al., 179 Pa. 98, we have uniformly ruled that a refusal to enter a compulsory nonsuit is not assignable for error, and the reason for this is found in Borough of Easton v. Neff, 102 Pa. 474. The first assignment is, therefore, dismissed. The next two complain of the court’s refusal to affirm defendant’s fourth point, asking for binding instructions in her favor. No exception was taken to the refusal of this point, and the second and third assignments must be dismissed. The fourth is also dismissed for being in palpable violation of rule 29, which provides that “if any specification embrace more than one point, or refer to more than one bill of exceptions, or raise more than one distinct question, it shall be considered a waiver of all the errors so alleged.” With no error properly assigned to anything done on the trial or to the refusal of the court to enter judgment for the defendant non obstante veredicto, the fifth assignment, complaining in general terms of the entry of judgment for the plaintiff, must fall with the other four.

Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Commonwealth v. Latampa, Appellant.

      Criminal law — Murder—Declarations of deceased — Evidence.
    1. At a murder trial the declarations of the murdered man are admissible, although made more than two hours after the shooting, and at a time when the deceased was able to walk a considerable distance, and although he did not die until the fourth day afterwards; and such declarations are admissible although a doctor told the deceased that the wound was not necessarily fatal, if it appears that notwithstanding such assurance the deceased believed that he was dying, and did in fact die from the wound. The test was the state of the mind of the deceased when making the declarations, and whether they were made under a sense of impending death.
    2. On such a trial the admission of evidence that the prisoner had a prejudice against natives of Calabria of whom the deceased was one, is not error. Such evidence in some degree tends to show motive, and is proper for the jury's consideration in determining the degree of the crime.
    Argued Oct. 4, 1909.
    Appeal, No. 182, Jan. T., 1909, by defendant, from judgment of O. & T. Clinton Co., Jan. T., 1909, No. 1, on verdict of guilty of murder of the first degree in case of Commonwealth v. Frank Latampa.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.

      Indictment for murder. Before Hall, P. J.
    Giuseppi Fredericco was called and sworn as a witness for the commonwealth.
    It is proposed to prove by this witness that Antonio Mazzina, the deceased, was well known to him; that said Mazzina boarded at the house of witness at the time he was shot; that witness saw Mazzina the night of the shooting and after he was shot, at the house of the witness; that Mazzina was badly wounded and talked with witness and said he had been shot and was dying or would die as he believed; that he had been shot by Frank Latampa, the defendant, at the house of John Curcio a short time before; that he said Latampa shot him, that he, Mazzina, was only a few feet from Latampa on the porch at Curcio’s house when the shot was fired; that Latampa was standing in the kitchen door of Curcio’s house when he shot him; that he, Mazzina, had no grudge against Latampa and did not know why he shot him; that witness saw the gunshot wound on Mazzina's body; that witness was sent to come to his house; that this conversation took place about 9: 30 or 9:45 P. M. the night of the shooting.
    This is offered to show the dying declaration of Mazzina that the defendant shot him and also as part of the res gestse, and that defendant shot and killed Mazzina.
    The defendant objects to the offer for the following reasons:
    1. The testimony in the case shows the shooting to have occurred about 7:45 o 'clock, more than two hours before the alleged conversation, and that the deceased had been in another house, had traveled a long distance and had conversed with various persons a long time before the alleged conversation, that the matter proposed to be proved would not therefore be a part of the res gestse.
    2. The testimony of Dr. Gilmore shows that he informed the deceased that he had an equal chance of living if he were taken to the hospital and that the wound was not necessarily fatal, if he were not taken to the hospital, that the deceased at the time was strong enough to walk to the train and in fact was not in a dying condition but lived four days afterward as shown by the testimony of the commonwealth; the alleged conversation would therefore not be admissible as a dying declaration. '
    3. The offer is hearsay evidence.
    4. The offer is irrelevant and incompetent.
    The Court: The offer is admitted, objection overruled and bill sealed for the defendant. [1]
    The defendant offers to prove by Dr. J. K. Gilmore, the physician and surgeon who attended the deceased, that he visited him at 9 o’clock on the night on which he was shot; that he stated to him that he would have an equal chance of recovery if he would go to the hospital and submit to an operation; that the deceased said to the doctor that, “ If I have a chance to get well I will go to the hospital,” and thereupon consented to be taken to the hospital; to be followed by proof that he actually was taken to the hospital at Lock Haven. This for the purpose of showing that the deceased did not actually believe that death was impending at the time he made the alleged declaration.
    The Court: The court is of the opinion that all this testimony has in substance already been offered. We will permit Dr. Gilmore to be called later, however, but at present we will proceed with the testimony of the witness on the stand and seal a bill for the defendant. [2]
    Mr. Hippie: We offer to prove by the witness on the stand that Latampa knew Anthony Mazzina was a Calabrian, a native of the province of Calabria, Italy; that he talked with Latampa when Mazzina was in sight one or more times and called him, spoke of him as a Calabrian; that Latampa said the Calabrians were no good, it would be better to take a gun and shoot him. He called the Calabrians sons of bitches; that he blamed his wife with running away with a man by the name of Ferzina who was a Calabrian, and that Latampa made like statements showing hostility to the Calabrians as a class. This to be followed by evidence of other witnesses of like import concerning the Calabrians, and for the purpose of showing a hostile mind on the part of Latampa against Calabrians as a class or people, and to show a malicious disposition of Latampa against this special class of people, and thus to show malice against Anthony Mazzina as a member of that class or one of that class as a Calabrian.
    October 25, 1909:
    Counsel for defendant objects:
    1. Because the offer is too indefinite.
    2. Because it does not tend to show malice against the deceased.
    3. Incompetent for the purpose.
    4. Irrelevant.
    The Court: General threats to kill a certain class of persons which included the deceased but not having reference to any particular person are admissible for the purpose of establishing malice and' an intent to kill of which the deceased became the victim. The more specific the design the greater its probative value. There may come a point at which the design is too indefinite in its indications to be of any probative value, but the mere' fact that it is generic, that it points toward a class of acts, does not destroy its relevancy providing the purpose naturally includes the act charged. But it is for the jury to determine whether such threats had reference to the person killed and whether he did come within the scope of the threats. All of these matters are questions of fact for the jury which will be submitted to them under proper instructions when it becomes our duty to charge them in this case.. The offer is therefore, admitted, objection overruled and bill sealed for the defendant. [3]
    Verdict of guilty of murder of the first degree, upon which judgment and sentence were passed.

      Errors assigned were (1-3) rulings on evidence, quoting the bill of exceptions.

      R. B. McCormick, with him W. C. Kress, for appellant..

      TI. T. Hall, district attorney, and T. C. Hippie, assistant district attorney, for appellee, were not heard.
   Per Curiam,

The principal errors alleged relate to the admission of the dying declarations of the murdered man. They were made more than two hours after the shooting, at a, time when the deceased was able to walk a considerable distance, and he did not die until the fourth day after. These circumstances though proper for the jury’s consideration in determining the weight to be given to the declarations did not make them inadmissible. The test is the state of mind of the deceased when making them and whether they were made under a sense of impending death. In Kehoe v. Com., 85 Pa. 127, the circumstances were very similar and it was held that the declarations were properly admitted.

The same view applies to the testimony of Dr. Gilmore that the wound was not necessarily fatal. Notwithstanding the doctor’s assurance the deceased believed he was dying and did in fact die from it.

The admission of evidence that the prisoner had a prejudice against natives of Calabria, of whom the deceased was one, was not error. It tended in some degree to show motive, and while the commonwealth was not obliged to show motive if the killing was proved, yet it was a natural part of the case and proper for the jury’s consideration in determining the degree of the crime.

Judgment affirmed and record remitted for purpose of execution.


text:
    Kellert, Appellant, v. Rochester & Pittsburg Coal & Iron Company.

      Mines and mining — Coal—Surface support — Release of damages.

    1. Where a deed conveying coal in fee simple with mining rights contains a clause by which the grantors release all claim for damages caused by the operation or working of the coal mines, such release is binding upon subsequent grantees of the surface land, although in the clause containing the release the words “heirs and assigns,” are not used after the names of the grantors.
    2. Where the grantors of coal under land, “release all and every claim or claims for damages to the said land caused by operating or working of said mines in a proper manner,” the removal of all the coal is not an improper operating or working of the mines; and if such removal causes a subsidence of the surface, the owners of the coal will not be liable to the owners of the surface for the injuries resulting from the subsidence.
    Argued Oct. 6, 1909.
    Appeal, No. 71, Oct. T., 1909, by plaintiffs, from order of C. P. Jefferson Co., Jan. T., 1908, No. 87, refusing to take off nonsuit in case of Anthony Kellert and Ida Kellert, his wife, v. Rochester & Pittsburg Coal & Iron Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for injuries to surface of land.
    At the trial the court entered a compulsory nonsuit.
    On a motion to take off the nonsuit Reed, P. J., filed the following opinion:
    The plaintiff’s testimony disclosed that the right to absolute support for their surface land, alleged to have been damaged by the removal of the coal thereunder, was qualified by the following stipulations and release contained in the deed from Samuel Craft and wife to Adrian Iselin for said coal, to wit: The said parties of the first part grant, bargain and sell unto the said party of the second part, his heirs and assigns, “all the coal of whatever kind, etc.,” underlying the plaintiffs’ land. “Together with the right of ingress and egress into, upon and from the said land for the purpose of examining and searching for, and of mining, manufacturing, and preparing the said coal for market, and taking, storing, removing and transporting the same, and for these purposes to build roads and drains upon or under the surface of said land, and to locate and erect such buildings or other structures with the necessary curtilage as may be necessary and proper for the convenient use and working of the mines or works, with a right to deposit the dirt or waste of said mines or works, upon the surface convenient thereto. And the said parties of the first part do hereby release all and every claim or claims for damages to the said land caused by operating or working of said mines in a proper manner.”

      On the trial of the cause as well as on the argument of the present motion to lift the nonsuit, it was contended that the release of damages contained in this deed bound the grantors alone, and did not extend to their grantees, the plaintiffs, since it is not in express words made to apply to the grantors, “their heirs and assigns.” In my opinion this contention can find no support either in the law or the facts in this case. The deed from Samuel Craft and wife to Adrian Iselin in apt words conveys a fee in the coal, and the subsequent related stipulations and the release of damages to the surface that might result from the removal of the coal are germane to and an integral part of the grant. It was not necessary to repeat the words “heirs and assigns” in connection therewith to make said stipulations and release apply to subsequent grantees of the surface land. Furthermore, a release does not necessarily require words of inheritance to make it so obligatory, and if this release were to be considered merely as an executory contract or agreement, being recorded and directly in the line of the plaintiffs’ title, it would be binding on them without words of inheritance.
    Counsel for plaintiffs was asked on the trial of the case what this release applied to, or what it meant, and he replied in substance that it had no significance and did not mean anything. Since then he has stated to the court that this reply, needed some modification, and he proceeded on the argument of the present motion to point out two classes of damage which the owner of the surface land might sustain by the removal of the underlying coal. First, the subsidence of the surface due to the removal of all the coal, and, second, injury to the surface by reason of a negligent or improper method of operating the mines in the removal of the coal, although sufficient coal is left in the land to support the surface, and contended that the release in question, if it had application to anything, applied to this latter class of damages. It is conceded that the defendant’s predecessor in title paid full value for all the coal in the land, and also that the defendant had a right to remove every pound of it if it could do so without letting down the surface. The manifest object of the stipulations and release in the deed of the grantors was to secure to the grantee, without liability for damages on account of injury to the surface, that which had been purchased, namely, all the coal in the land; providing it was taken out in a proper manner. Without these stipulations and release the grantee could not remove any of the coal purchased, no matter how carefully and skillfully it might be done, if its presence in the ground were necessary to the support of the surface. So long as the surface is not disturbed, it is immaterial to the owner whether the coal is taken out in a proper or improper manner. The grantors and grantee knew this, or are presumed to have known it, and it must be assumed that they made their contract with reference t© the law applicable to such transactions. The release of damages contained in the deed is expressed in the broadest possible terms, and the only exception made on account of damages to the surface by reason of the removal of the coal is those damages which might be caused by operating or working the mines in an improper manner. The removal of all the coal, and this is the only ground of complaint, is not an improper operating or working of the mines: Youghiogheny River Coal Co. v. Allegheny National' Bank, 211 Pa. 319. There is no substantial distinction between the case cited and the case at bar, and the latter is ruled by the former.
    October 25, 1909:
    And now, December 31, 1908, the motion to take off the nonsuit heretofore granted is refused.

      Error assigned was order refusing to take off nonsuit.

      A. J. Truitt, for appellants.

      B. M. Clark, with him A. B. Stewart, for appellee.
   Per Curiam,

The judgment is affirmed on the opinion of the court below..


text:
    Gillespie, Appellant, v. Buffalo, Rochester & Pittsburg Railway Company.

      Railroads — Right of way — Deed for right of way — Elevation of tracks— Damages.

    Where a grant of a right of way to a railroad company is “to have and to hold the said right of way, rights and privileges to the use of said railroad company so long as the same shall be required for the uses and purposes of said road in as full, perfect and ample manner as may be necessary for the purposes hereby intended," the railroad company cannot be compelled to make a second payment of damages for elevating its tracks within the right of way thus lawfully acquired.
    Argued Oct. 6, 1909.
    Appeal, No. 201, Oct. T., 1907, by plaintiff, from judgment of C. P. Jefferson Co., Nov. T., 1901, No. 212, for defendant on case stated in suit of W. M. Gillespie v. Buffalo, Rochester & Pittsburg Railway Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Case stated to determine liability for damages for elevating railroad tracks.
    Reed, P. J., filed the following opinion:
    By the terms of the case stated, a single question is presented for the consideration of the court, viz.: Can a railroad company be compelled to make a second payment of damages for elevating its roadbed on its lawfully acquired right of way for which due compensation was made at the time of acquisition? In this case the right of way was obtained by grant, the language of which vests a title coextensive with that acquired by condemnation under the right of eminent domain. The habendum clause of the grant is as follows: “To have and to hold the said fight of way, rights and privileges to the use of said railroad company, so long as the same shall be required for the uses and purposes of said road in as full, perfect and ample manner as may be necessary for the purposes hereby intended.”

      The plaintiff seeks an affirmative answer to the above-stated question on the adjudicated cases awarding damages to the abutting landowner for injury resulting to his property from a change in the grade of a duly laid out and constructed highway or street, and cites the following authorities: Jones v. Bangor Borough, 144 Pa. 638; O’Brien v. Philadelphia, 150 Pa. 589; Jones v. R. R. Co., 151 Pa. 30. When land of a private owner is taken for the purpose of laying out a public highway, the public acquires an easement in and upon the same for the purpose of travel. The only right vested in the public by such easement is that of free and unobstructed travel over the land. It is no more than a license to pass along and over the highway laid upon it. The right of property and of possession remain in the owner of the land for all other purposes, and he may exercise any lawful acts of ownership over the same which do not interfere with the public travel thereon: Lewis et al. v. Jones et al., 1 Pa. 336; Wheelock v. Fuellhart et al., 158 Pa. 359. Considering the nature and extent of the easement, it is not difficult to see how a change in the grade of the highway may work an injury to the proprietor of the soil within the meaning of art. XVI, sec. 8, of the constitution. But the title to property condemned by municipal and other corporations for public use, by virtue of the power of eminent domain, is essentially different from an easement, or right of travel in and along a public highway. The title acquired in condemnation proceedings vests in the corporation a base or qualified fee in the land, with the right of exclusive possession and enjoyment of the same. The landowner’s title is thereby completely divested, and he has no interest in or control over the land taken so long as it is used for the purposes for which it was condemned: Reading City v. Davis, 153 Pa. 360; Penna. Schuylkill Valley R. R. Co. v. Paper Mills, 149 Pa. 18. In the latter case Mr. Justice Mitchell, delivering the opinion of the court, says: “Such title is sometimes called an easement, but it is a right to exclusive possession, to fence in, to build over the whole surface, to raise and maintain any appropriate superstructure, including necessary foundations and to deal with it within the limits of railroad uses as absolutely and as uncontrolled as an owner in fee.” In the case of Pitts., Fort Wayne & Chicago Ry. Co. v. Peet, 152 Pa. 488, the court, by Mr. Chief Justice Paxson, said: “The vice of this argument consists in treating the plaintiff’s right as a mere easement or right of way. It is a great deal more than a right of way. It has the actual possession of the property, and that possession is exclusive, at all times and for all purposes, except where a way crosses it: Philadelphia & Reading R. R. Co. v. Hummell, 44 Pa. 375; Junction Railroad Co. v. City of Philadelphia, 88 Pa. 424. The estate acquired by a railroad company by a condemnation of land is often spoken of as an easement, but the term is used in a loose way for the purpose of distinguishing it from a fee.” The precise question submitted for consideration in this case has been passed upon by the Supreme Court, and ruled adversely to the plaintiff’s contention in Hummel et al. v. Cumberland Valley R. R. Co., 175 Pa. 537. The court in that case says: “It was as far back as the year 1839 that the Cumberland Valley Railroad Company adjusted, settled and paid to the former owners of the land, over which the bridge or viaduct in question was erected, ‘all damages occasioned by the construction or use of the said road and the bridge over the Susquehanna so far as the same runs through their lands.’ For the occupancy and use of the land of the then owners for the purposes of the railroad, the defendant paid them $2,250. It is not, and it cannot be, questioned, that this was full compensation for all the acts done by the railroad company in taking the land and building the road over it on piers then erected. The present proceeding is an effort to compel the same company to make a second payment of damages to the present owners who have succeeded to the title of the owners at that day. The excuse for such an extraordinary attempt is that the company has filled up the land under the bridge and between the piers, and this, it is claimed, gives rise to another right to have damages for the mere user by the company for their own purposes of the same land for which full compensation was paid almost sixty years ago. It is only necessary to say that this filling occupies only land under the bridge, between the piers and within the width of the lawful right of way of all railroads. The use of the ground is such as is entirely within the discretion of the company and it is not of any moment that this particular use was not made at an earlier date.” The principle that “an action does not lie for a reasonable use of one’s right though it be to the injury of another,” applies in this case, and, in the language of Mr. Justice Gordon, in Penna. R. R. Co. v. Lippincott, 116 Pa. 472, “it seems to be very clear that a private person could do with impunity, on his own property, just what this railroad company has done. He might build a house; and thus shut out his neighbor’s view, light and air; he might build an embankment, or run a road on or along his own line, and be liable for nothing as long as he used his house, embankment or road in a lawful manner, although in either case an injury may have been done to the adjacent property.” It is not alleged that the defendant company has gone outside of the lines of its own property, or that it has directly encroached upon the land of the plaintiff. The injury complained of is of a consequential character, and arises from the elevation, by the defendant, of its roadbed within the limits of its right of way. This, as has been seen, it had a right to do, and the damages resulting therefrom are damnum absque injuria: Penna. R. R. Co. v. Lippincott, 116 Pa. 472; Penna. R. R. Co. v. Marchant, 119 Pa. 541.
    October 25, 1909:
    And now, March 25, 1907, in accordance with the case stated, and for the reasons given in the foregoing opinion, judgment is directed to be entered in favor of the defendant.

      Error assigned was in entering judgment for defendant on the case stated.

      Lex N, Mitchell, with him Charles Corbet, for appellant.

      Cadmus Z. Gordon, with him C. H. M’Cauley, for appellee.
   Per Curiam,

The judgment is affirmed on the opinion of the court below.


text:
    Quigley, Appellant, v. Standard Steel Car Company.

      Negligence — ■Railroads—Master and servant — Evidence—Nonsuit.
    In an action by a conductor against his employer, a steel car company, to recover damages for personal injuries suffered on the defendant’s premises, by his being struck by some object projecting from the rear car of a train of which he was conductor, a nonsuit is properly entered where it does not appear from the evidence whether the car in question belonged to the defendant company, or was that of some railroad company in which material was being brought into the defendant’s works, and it also does not appear when, where or by whom the car was loaded, or when it came into the condition in which it was at the time of the accident, or that the defendant company knew of its condition either directly or constructively.
    Argued Oct. 11, 1909.
    Appeal, No. 72, Oct. T., 1909, by plaintiff, from order of C. P. Butler Co., Marcli T., 1907, No. 27, refusing to take off nonsuit in case of James Quigley v. Standard Steel Car Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Galbreath, P. J.
    After the evidence on behalf of the plaintiff had been introduced at the trial defendant made the following motion:
    Mr. Campbell: We move the court for a compulsory non-suit in this case; first, for the reason that, as stated in the statement on file, it is alleged that the negligence of the defendant company consisted in the declaration that the car causing the accident was a car that had been loaded by the defendant company; that it was improperly loaded; that the car company employed incompetent employees for that purpose, knowing the employees to be incompetent, and that the evidence in the case does not support this allegation. Second, that there is no specific proof of any negligence in the case upon the part of defendant company, resulting in the accident to the plaintiff.

      The Court: I have listened to you intently during the rather protracted argument of this case, because it is an important case, especially to this plaintiff, who has been so seriously injured, and I wished to get a proper conclusion of the matter. I have come to the conclusion that it is the duty of the court to dispose of the case. The plaintiff.was injured December 23, 1905, while in the employ of the defendant company, as conductor of a transportation train of thirteen cars, within the defendant company’s ground, by being struck by some object projecting from the rear car of the train and knocked under it. It does not appear from the evidence whether the car in question belonged to the defendant company or was that of some railroad company in which material was being brought into defendant company’s works. It does not appear when, where, or by whom it was loaded, or when it came into the condition in which it was at the time of the accident. If the car was the property of the defendant company, and was loaded on its grounds, and by its workmen, there is no evidence to show this, and, consequently, no evidence showing that it was negligently loaded by defendant’s workmen. If it was not a car of the defendant company, but belonged to a railroad company and was being used to bring in material to defendant’s works, there is no evidence that its condition was actually known to the defendant company or that it had been in its possession a sufficient length of time to charge it with constructive knowledge of that condition. We think there is no proof of specific negligence on part of defendant company in the respects charged in plaintiff’s statement of claim. If it be said that the fact of the projecting object is evidence from which negligence may be inferred, yet there is no evidence from which it may be ascertained whose negligence it was and whether such as can be charged to the defendant company.
    And until the negligence is specifically shown and directly traced, the court cannot say, as a matter of law, whether it was the negligence of a vice principal, and therefore of the company, or whether it was the negligence of a fellow servant. Under all the evidence, therefore, we are disposed to believe that there can be no recovery, and the motion for a compulsory nonsuit is therefore sustained. This seems to be a case that it is the duty of the court to dispose of. A case of this character we would much prefer to submit to the jury, if the rules of law permitted us to do so, by reason of the severe injury that the plaintiff has sustained, but we are quite clear that under the evidence, as it is before us, the court would be disregarding its duty in submitting this case, for the reason that under the law there cannot be a recovery, and for that reason you are discharged from any further duty in the case.
    October 25, 1909:

      Error assigned was refusal to take off nonsuit.

      S. F. Bowser, with him A. L. Boioser, J. B. Mates and W. G. Wilson, for appellant.

      T. G. Campbell, with him W. D. Brandon, for appellee.
   Per Curiam,

The judgment is affirmed on the opinion of the learned judge in entering the nonsuit.


text:
    Clark, Appellant, v. Pittsburg & Lake Erie Railroad Company.

      Negligence — Railroads—Master and servant — Fellow servant — Brakeman.

    In an action by a brakeman against his employer, a railroad company, to recover damages for personal injuries, binding instructions for the defendant are proper where the evidence shows that plaintiff was brushed off the side of a moving car by another car standing on a switch at a point not past the danger post, and that all cars were placed upon sidings by crews in the employ of the defendant company, consisting of a conductor, engineer, fireman and brakeman. In such a case plaintiff’s injuries were the result of the negligence of a fellow servant, and he cannot therefore recover.

      Argued Oct. 13, 1909.
    Appeal, No. 69, Oct. T., 1909, by plaintiff, from judgment of C. P. Lawrence Co., Dec. T., 1905, No. 13, on verdict for defendant non obstante veredicto in case of Fred Clark v. Pittsburg & Lake Erie Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before W. E. Porter, P. J.
    At the trial the jury returned a verdict for plaintiff for 14,525.35.
    On motion for judgment for defendant non obstante veredicto W. E. Porter, P. J., filed the following opinion:
    This case is now before us upon a motion for judgment non obstante veredicto and an examination of the evidence leads us to the conclusion that we should have given binding instructions upon the trial of the case, and that we should now grant the motion for said judgment.
    The plaintiff was employed by the defendant as a brakeman with a yard crew in the city of New Castle and was so employed at the time of his injury. The evidence shows that he was brushed off the side of a moving car by another car which was standing on a switch, the latter car not having been pushed in upon the switch past the danger post. And while it does not appear who the individuals were who pushed this car onto the siding, yet it is in evidence that all cars were placed upon sidings by crews in the employ of the defendant company, consisting of a conductor, engineer, fireman and brakeman. And even if this did not appear in evidence we could not presume the car was negligently placed in the position that it was found to be in by others than those whom common experience teaches us ordinarily perform the duty of placing cars upon switches, viz.: a crew generally consisting of a conductor, engineer, fireman and brakeman. And if the car was placed in the position in which it was found by any member or all of a crew consisting of a conductor, engineer, fireman and brakeman in the employ of the defendant, then it was negligently placed there by a coemployee and being placed there by a coemployee the injuries to the plaintiff were the result of the negligence of the plaintiff’s coemployee and he cannot recover of defendant.
    October 25, 1909:
    Now, August 3, 1908, the motion for judgment non obstante veredicto is granted.

      Error assigned was in entering judgment for defendant non obstante veredicto.

      W. D. Wallace, with him Chas. E. Mehard, for appellant.

      J. Norman Martin, for appellee.
   Per Curiam,

The judgment is affirmed on the opinion of the court below.


text:
    Zollner v. Moffitt, Appellant.

      Promissory notes — Protest—Notary public’s certificate of protest— Memorandum as to notice sent to indorsers.

    The Act of December 14, 1854, sec. 2, P. L. (1855) 724, making the certificate of a notary public proof of the facts therein stated, does not provide that the notices to indorsers of promissory notes must be sent before the certificate of protest is signed and sealed, and that if they are not so sent it shall not be proof. In the eyes of the law, the protest, including the presentation, the making out of the certificate and the giving of notices to the indorsers is one act, and the order of time in which the constituent parts of that act are performed is immaterial.
    Argued Oct. 14, 1909.
    Appeal, No. 107, Oct. T., 1909, by defendant, from judgment of C. P. Washington Co., Feb. T., 1907, No. 60, on verdict for plaintiff in case of B. A. Zollner v. John H. Moffitt.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit on a promissory note. Before McIlvaine, J.
    At the trial the defendant, John H. Moffitt, testified positively that he had received no notice of the protest of the note.

      The certificate of protest of the notary contained a memorandum to the effect that notice of protest had been sent to the indorsers. The court submitted to the jury the question as to whether the presumption of notice arising from the certificate had been rebutted.
    Verdict and judgment for plaintiff for $2,000. See Zollner v. Moffitt, 222 Pa. 644.
    On a motion for a new trial McIlvaine, P. J., filed the following opinion:
    Two reasons have been assigned in support of this motion:
    1. The court erred in not affirming the defendant’s point.
    2. The court erred in overruling the objection of the defendant and admitting the testimony of Risbeck that Miss Minnie Richardson on the second or third of November inquired of him for the address of B. A. Zollner.
    The point presented by the defendant and the court’s ruling thereon are as follows:
    1. If the jury find from the evidence that at the time Miss Minnie Richardson signed and sealed the certificate of protest of the note in suit she had not sent notice of protest to any of the indorsers, and had not even made out the notices of protest, then the presumption of due notice arising from the certificate itself is completely rebutted. Answer: Refused. It is not for the court but the jury to say when the presumption arising from the certificate is completely rebutted.
    To properly judge the action of the court in answering this point as it did, the evidence should be considered as well as the purpose the defendant’s counsel wished to accomplish by having the point affirmed.
    The only testimony to which the point could refer was that of the notary, Miss Minnie Richardson, which according to the stenographer’s record is as follows:
    “Q. Where do you live? A. Charleroi. Q. What is your business? A. I am a notary public. Q. Were you a notary public on November 1, 1906? A. Yes, sir. Q. I show you paper marked 'Exhibit “B,” ’ and ask you to state whether or not you made out that certificate? A. I did. Q. That is your signature and your seal? A. Yes, sir. Q. At the time you signed and sealed this certificate, had you sent notice of protest to anyone? A. No, sir. Q. I show you exhibit No. 1, and ask you to state whether that was signed and sealed by you as notary public? A. Yes, sir. Q. I show you exhibit No. 2, and ask you to state whether or not that envelope is addressed in your handwriting? A. Yes, sir, it is.”
    Cross-examination by Mr. Bane: “Q. Miss Richardson, you say this certificate is your official certificate as notary public? A. Yes, sir, it is. Q. It is your certificate of the protest of the note which was heretofore marked 'Exhibit “A,” February 25, 1907, Wm. H. McEnrue?’ A. Yes, sir. Q. I understood you to say that you did not send the notice of protest to the indorsers before you executed the certificate? A. No, sir, I didn't. Q. You never did? A. I never did. Q. You always sent the notice of protest after you filled out the certificate? A. Yes, sir. Q. I call your attention to the words at the left-hand corner of this certificate, 'Memorandum — Sent notice to B. A. Zollner, John H. Moffitt, W. C. Fishburne, Charleroi Savings & Trust Company.' That writing is in your handwriting, is it not? A. Yes, sir. Q. It was put there by you before you returned this certificate to the bank? A. Yes, sir. Q. You received this note from the cashier of the First National Bank as notary public, and in your official capacity, for the purpose of protesting it? A. Yes, sir. Q. And this certificate with the note attached to it were returned to the bank after the protest, were they? A. Yes, sir. Q. And this memorandum 'Sent notice to B. A. Zollner, John H. Moffitt and W. C. Fishburne, Charleroi Savings & Trust Company' was written by you on the certificate before you returned it to the bank? A. Yes, sir. Q. When did you return it to the bank? A. The following morning. Q. And it had this memorandum on it at that time? A. Yes, sir. Q. Now, Miss Richardson, I hope you will understand me as not meaning anything offensive. This memorandum was not a lie, was it?”
    Objected to and no answer.

      “ Q. Then you returned this certificate and the note to the bank the next morning with this memorandum on it? A. Yes, sir.”
    Redirect examination by Mr. Irwin: “ Q. Miss Richardson, I ask you whether or not the memorandum 'Sent notice to B. A. Zollner, John H. Moffitt and W. C. Fishburne, Charleroi Savings & Trust Company/ was written on there at the same time that you signed and sealed the certificate? A. Yes, sir, before I sealed it. Q. Before you put your seal on, that memorandum was on? A. Yes, sir. Q. At the time you put that memorandum on there had you, as a matter of fact, sent notice to any of these parties? A. No, sir, I hadn’t made the notice. Q. Showing you again exhibit No. 1, I ask you whether or not that is the only notice of protest you ever made out for B. A. Zollner? A. November 1, 1906, for B. A. Zollner. Q. Notice of protest of the note in suit? A. Yes, sir. Q. Is this the envelope? A. Yes, sir, that is my writing.”
    The evident purpose of the point was to have the court make the case turn upon the fact that the notary had not made out and sent the notices of protest to the indorsers before she signed and sealed the certificate of protest of the note in suit. In other words, — the fact being admitted, — the court was asked as a matter of law to say that the plaintiff’s proof of protest and notice to the indorsers as found in the certificate of the notary was completely met and the verdict of the jury should be for the defendant unless there was proof of notice aliunde the certificate.
    The Act of December 14, 1854, sec. 2, found in the Pamphlet Laws, 1855, 724, makes the certificate of the notary proof of the facts therein stated in all suits pending between the parties, which includes proof of presentation and dishonor of the note and notice to the maker and indorsers. Does the testimony of the notary that she, in the performance of her duty, signed and sealed the certificate before she made out and sent the notices to the indorsers, overcome this proof, or, to use the language of the point, “ completely rebut” the presumption of due notice arising from the facts stated in the certificate, and is this a question of law to be determined by the court and not by the jury?
    At the trial we thought that the fact that the notary signed the certificate offered in evidence in order of time before she had made out and sent the notices was not conclusive proof that she did not at any time make out and send notices to the indorsers and therefore did not completely rebut the proof found in the certificate under the provisions of the act of 1854. We further thought that the question whether this fact was sufficient to overcome the proof found in the certificate was a question for the jury and not the court, and we are still of the same opinion. It will be noticed by reference to the testimony of the notary that she was not asked whether she had sent the notices before she delivered the certificate of protest to the bank, nor was she asked whether she had delivered the notices to the indorsers immediately after she had signed, sealed and delivered the certificate. We do not know what she might have said to these last questions. She might have answered “Yes” she might have answered “No;” she might have answered “I do not recollect.” How then does the simple fact that the certificate was signed and sealed by the notary in order of time before she had sent out notices to the indorsers meet “the proof” that she did send out such notices? The act of 1854 does not provide that the notices to indorsers must be sent before the certificate is signed and sealed and that if they are not so sent it shall not be proof. In the eyes of the law, the protest, including the presentation, the making out of the certificate and the giving of notices to the indorsers, is one act, and the order of time in which the constituent parts of that act are performed is immaterial. On the whole case the question to be determined was, Had the proof of notice to John H. Moffitt of the nonpayment of this note at maturity, which was found in the certificate offered in evidence and admittedly executed and delivered by the notary in good faith, been overcome, and this in our opinion was a question for the jury and it was not within the province of the court to say that the fact “that at the time the notary signed and sealed the certificate of protest of the note in suit she had not made out nor sent the notice to any of the indorsers,” completely rebutted the presumption of due notice arising from the certificate itself. We are therefore of the opinion that the point presented by the defendant at the trial was correctly answered.
    October 25, 1909:
    Granting that the court erred in not sustaining the objection to the offer made when the witness Risbeck was on the stand, the error was innocuous, as the witness failed to testify to what the plaintiff offered to prove, and the defendant’s objection was in the end sustained, as will appear by reference to the record.
    And now, April 14, 1909, the motion of the defendant for a new trial is overruled.

      Error assigned among others was refusal of defendant’s point as above, quoting it.

      R. W. Irwin, with him D. M. McCloskey and J. A. Wiley, for appellant,
    cited: M’Gee v. Bank, 5 Watts, 32; Craig v. Shallcross, 10 S. & R. 377; Parry v. Almond, 12 S. & R. 284.

      John C. Bane, with him B. G. Hughes and II. B. Hughes, for appellee,
    cited: Baumgardner v. Reeves, 35 Pa. 250; Starr v. Sanford, 45 Pa. 193; Zollner v. Moffitt, 222 Pa. 644; Stewart v. Allison, 6 S. & R. 323; Spear v. R. R. Co., 119 Pa. 61; McCafferty v. R. R. Co., 193 Pa. 339; Devlin v. Beacon Light Co., 198 Pa. 583; Heh v. Gas Co., 201 Pa. 443; Leibig v. Steiner, 94 Pa. 466; Penna. R. R. Co. v. Weiss, 87 Pa. 447; Repsher v. Wattson, 17 Pa. 365; Jenks v. Doylestown Bank, 4 W. & S. 505.
   Per Curiam,

The judgment is affirmed on the opinion of the court below.


text:
    Bauer, Appellant, v. Martin.

      Deed — Delivery—Recording—Judgments—Husband and wife.

    Where a deed from a husband and wife to a trustee for the wife is never delivered, and is only placed upon record after judgments have been entered against the husband, the deed is invalid as against purchasers at sheriff's sale under the judgments.
    Argued Oct. 11, 1909.
    Appeal, No. 96, Oct. T., 1909, by plaintiffs, from judgment of C. P. Butler Co., March T., 1909, No. 2, on verdict for defendants in case of William Bauer et al. v. Louisa E. Martin et al.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Issue to determine title to real estate. Before Gal-breath, P. J.
    The trial judge stated the facts to be as follows:
    The deed of William Bauer and Catherine Bauer, his wife, was executed on November 25, 1872, to Benjamin Bauer, a brother of William, in trust for his said wife, Catherine, for life, and after her death in trust for the children of William Bauer in fee, subject, however, to the occupancy and control of the land therein described during his natural life and the right to sell and convey the same, if he should see proper, with the consent of his said wife. The land described in said deed consisted of a lot of ground situate on what is now West Jefferson street in the borough of Butler, and also an undivided one-half interest, being the whole interest of William Bauer in ten acres of land now wholly within said borough, being the interest now in dispute. The deed after being executed by William Bauer and wife, was given into the possession of said wife where it remained until December 14, 1875, when it was left for record by William Bauer. Benjamin Bauer, grantee in trust in said deed, had no knowledge, as he testifies, of its execution or existence, until after the present litigation was begun. William Bauer testifies that this deed conveying the life estate in the property to his wife was in consideration of the fact that it was her money which had been used in the purchase of said lot on Jefferson street, the title to which had been taken in his own name. In so far as the children were, concerned^ the deed was a purely voluntary conveyance on the part of both William and wife.
    On December 13, 1875, being the date before said deed was left for record by William Bauer, a number of judgments were entered against him in the common pleas court of Butler county amounting to $6,950, and on December 14, the day on which the deed was left for record, additional judgments were entered amounting to $8,690. Executions were issued on the judgments, entered December 13 as well as on said other judgments, and the said Jefferson street property and also the undivided one-half interest in the ten acres were levied upon as the property of William Bauer and sold to John Berg & Company by deed of George Walter, sheriff, dated June 21, 1876.
    On the trial of the case, the jury were instructed that there was no delivery of the deed of William Bauer and wife to Benjamin Bauer, trustee, until it was left for record on December 14, 1875, and that no title could pass until delivery, in consequence of which, a sale of the land on the judgments entered on the thirteenth day of said month vested title to the land in the sheriff’s vendee.
    Defendants presented the following point:
    1. The undisputed evidence being that the deed of November 25, 1872, was never delivered ,to Benjamin Bauer, the trustee named therein, nor to the cestuis que trustent therein, called the children of the grantor, though not named, nor to anyone else, but remained in the hands and custody of the grantors until placed by them upon record, December 14, 1875, there was no delivery in law prior to the entry of the judgments upon which the land in controversy was sold, and the deed is therefore invalid and of no effect as against the purchaser at sheriff’s sale. Answer: That is affirmed.
    Verdict and judgment for defendants. Plaintiffs appealed.

      Error assigned was above instruction, quoting it.

      October 25, 1909:

      John D. Marshall, for appellants.

      S. F. Bowser, with him W. D. Brandon, for appellees.
   Per Curiam,

The defendant's first point was properly affirmed and was decisive of the case.

Judgment affirmed.


text:
    Kimmel's Estate.

      Will — Construction—Gift to child — Remainder—Intestacy.
    1. Testator in one clause of his will.provided as follows: “I direct that fifteen hundred dollars be set aside for the use and maintenance of my daughter S., and after her death and paying her funeral expenses, the remainder shall be equally divided among my bodily heirs hereafter named, my executors shall manage the fund.” In the clause immediately following he directed that his two sons, naming them, and that his two other daughters “shall each share alike.” Held, (1) that the “remainder” mentioned in the will was the remainder of the $1,500; (2) that testator died intestate as to his estate above the sum of $1,500, and (3) that S. was entitled to share equally with the other children in the portion of the estate as to which the testator died intestate.

      Estoppel — Partition—Decedents ’ estates — Will.
    2. Where a woman ignorant of affairs and without legal advice, and without full knowledge of the facts, signs a paper in partition proceedings at the instance of her brother, by which she loses her share of her inheritance in her father’s estate, she is not estopped from subsequently intervening in the partition proceedings and having them revoked and set aside.
    Argued Oct. 5, 1909.
    Appeals, Nos. 190 and 191, Oct. T., 1909, by Florence J. Claypool, from decrees of O. C. Armstrong Co., setting aside sale in partition in Estate of Lewis Kimmel, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Petition to intervene in partition proceedings, and to set aside a sale in such proceedings.

      On the petition for intervention Patton, P. J., filed the following opinion:
    The foundation of this application rests upon the construction of the last will and testament of Lewis Kimmel and especially upon the second and third items thereof, which said items read as follows:
    “Second I direct that fifteen hundred (1500) dollars be set aside for the use and maintenance of my daughter, Susie Sell, and after death and paying her funeral expenses the remainder shall be equally divided among my bodily heirs hereafter named, my executors shall manage the fund.
    “Third: I direct that my sons, Tobias B. Kimmel and Solomon W. Kimmel and my daughters Carrie A. George and Florence J. Claypool, shall each share alike, Grace C. Kimmel, Sarah S. Kimmel and John A. Kimmel having preceded me to the spirit world.”
    The contention of Susie Sell, the petitioner, is that Lewis Kimmel devised only the $1,500 and his library (the latter in the fourth item of his will) and died intestate as to the balance of his real and personal estate. The claim of the contestants is that Lewis Kimmel devised his entire estate, real and personal, and (except as to the $1,500 and the library) it is to be divided among Tobias, Solomon, Carrie and Florence, share and share alike.
    But few if any precedents or authorities can be found that will shed any light upon the question except those general and familiar rules laid down for the construction of all testamentary papers. The question is not what Lewis Kimmel intended to devise, but what he actually did devise. And in the paper before us the construction does not so much depend upon what was written as to what was left unwritten. We search the will in vain for any said familiar expressions as “As to such estate as it hath pleased God to intrust me with I give” and “As to my worldly estate I give” and no mention is made of either real or personal property and no disposition made of either except the $1,500 and the library.
    The third item of the will says that the four devisees mentioned “shall each share alike.” But in what? In the real or personal property remaining after the $1,500 is distributed? The will does not say so, and we cannot read that into it.
    In our opinion Susie Sell was the chief object of the testator’s bounty, and it was she who was prominent in his mind, and it was primarily her welfare that he was seeking when he wrote the will. He first sets aside $1,500 for her use and maintenance and funeral expenses, and places the fund under the management of his executors; anticipating that there may be a balance remaining in their hands at Susie’s death, he directs that this “ Remainder shall be equally divided among my bodily heirs hereinafter named.” In the third item of his will he then proceeds to mention who his “bodily heirs” are and how this “remainder” of the $1,500 shall be distributed. And when he writes that Tobias, Solomon, Carrie and Florence “shall each share alike” it is in the balance of the $1,500 remaining in the hands of the executors after the death of Susie that they “shall each share alike,” and not the entire balance of the real and personal estate to the exclusion of Susie. Any other construction of the will would require us to exclude Susie, the favorite of the testator, from participating in his residuary estate and disinherit her without express words or necessary implication. This the law will not tolerate.
    It is argued that the petitioner has estopped herself, by her acts and declarations, from coming in upon the fund.
    On May 21, 1908, Solomon Kimmel presented a petition to the orphans’ court setting forth that he, Tobias, Florence and Carrie were each the owner of the undivided one-fourth interest in the real estate of Lewis Kimmel, deceased, and that they and Susie Sell were all the heirs of said Lewis Kimmel. Susie Sell was named in the writ and duly served. She also accepted notice of the rule to show cause why the real estate should not be sold, asked the court for an order for a public sale and waived her right to bid on said real estate or take it at the appraisement. She further signed a paper setting forth that she was present at the sale to Linsenbigler; that she approved of it, and asked the court to confirm it, and waived the right to file any exceptions.
    Estoppels are governed by equitable principles. At the time she signed the papers above mentioned she was without legal advice, depending entirely upon what her brother Tobias (who was one of the executors and who claimed that she was not entitled to any interest in the estate) told her. If we are right in our construction of the will both Tobias Kimmel and his attorney misled Susie, although unintentionally. • She is a woman deserted by her husband, living remote from the county seat, her time taken up with domestic duties and in the care of her father in his declining years. It is not to be wondered at that she would sign any paper presented to her by her brother and his attorney in whom she had confidence. It would be most inequitable and unjust that under these circumstances she should lose her inheritance, and it is almost incredible that any brother or sister should ask us to do that which is repugnant to justice and fair dealing. The orphans’ court is a court of equity and as far as able does those things which contribute to the furtherance of right and the suppression of wrong.
    An estoppel to be binding must be intelligently made with a full knowledge of all the facts: Miller’s Est., 159 Pa. 562; Harrington v. Stivanson, 210 Pa. 10.
    It is argued that the decree of the orphans’ court in partition is not binding as to the title of the present petitioner and that she can still assert her claim upon the fund. While this decree of the court stands it may well be doubted if she could attack that decree collaterally. It should be noticed that the petition for the partition is peculiar in this that Susie Sell is named as one of the “heirs” of Lewis Kimmel, and she is named in the writ the same as the others, although the petition denies that she has any interest in the real estate.
    Viewing the whole matter from an equitable standpoint we think it but just and right that the petitioner, Susie Sell, should have her day in court, there to assert whatever rights she may have in the estate of her deceased father.
    And now, August 9, 1909, the decree of the court awarding an inquest dated May 21, 1908, and all proceedings thereunder including the sale, be rescinded, revoked and set aside, and the said Susie Sell is now allowed to intervene and file an answer in said partition proceedings in order that justice and equity may be done.
    November 5, 1909:
    The court subsequently entered a decree setting aside the sale in partition proceedings.

      Errors assigned were (1) in permitting the intervention, and (2) in setting aside the sale.

      Harry C. Golden, with him H. M. Davidson and W. L. Peart, for appellant.
    There was no authority: Woodside’s Est., 188 Pa. 45; Vance’s Est., 209 Pa. 561; Rawle’s App., 106 Pa. 193; Miller’s App., 113 Pa. 459.
    Susan Sell was estopped from objecting to the partition proceedings: Young v. Babilon, 91 Pa. 280; Donaghy’s Est., 152 Pa. 92; King’s Est., 215 Pa. 59; McClure v. McClure, 14 Pa. 134; Harlan v. Langham, 69 Pa. 235; Miller’s Est., 159 Pa. 562.

      J. W. King and H. A. Heilman, for appellees, were not heard.
   Per Curiam,

Decree affirmed on the opinion of the court below.


text:
    Schwem v. Calloway, Appellant.

      Deed — Testamentary paper — Will—Remainder to heirs — Rule in Shelley’s case.

    A deed by a husband and wife conveyed lands belonging to the wife to a trustee in trust, but reserving to the wife from the operation of the deed all of the lands described therein during her natural life under her full control and possession so that the control and possession of the trustee should only be exercised at the time of her death. The deed further provided that upon her death the trustee should hold the lands for the use of her children, naming them, and after the decease of any of the said children then to the right heirs of such deceased child. The deed further provided that the husband and wife might during the life of both of them by mutual consent, alter or amend the trust or alter or revoke the same. Held, (1) that if the instrument in question was testamentary, it was revocable, and was in fact revoked by a deed by the wife after the death of her husband; (2) that if the instrument was a deed, then the trust created an estate in fee simple or at least in fee tail, which was executed by the statute in the heirs of the wife, and that if the grantee in the deed from the wife also held a conveyance from all the said heirs, he had the entire title.
    Argued Oct. 6, 1909.
    Appeal, No. 199, Oct. T., 1909, by defendant, from judgment of C. P. Jefferson Co., Nov. T., 1909, No. 129, for plaintiff on case stated in suit of George E. Schwem v. Arthur W. Calloway.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Case stated to determine title to real estate.
    From the record it appeared that on April 19, 1893, Sarah E. Dinsmore and N. J. Dinsmore, her husband, united in a paper, appearing on its face to be a deed, and purporting to convey certain lands of Mrs. Dinsmore to L. C. McGaw in trust for certain trusts thereinafter set forth, subject to a life interest of Mrs. Dinsmore. The instrument after describing the lands continued as follows:
    “ Reserving, nevertheless, to the said Sarah E. Dinsmore, party of the first part, and reserving entirely from the operation of this deed as fully as if this deed had never been made at all, all of these lots and land as above described or intended so to be, together with all and singular the buildings, improvements, ways, waters, watercourses, rights, liberties, privileges, hereditaments and appurtenances whatsoever thereto belonging or in anywise appertaining, and all the rents, issues and profits thereof and the full, free, uninterfered with occupation and control of the same and every part thereof during the natural life of the said Sarah E. Dinsmore, leaving and keeping her in respect to said land and buildings fully possessed of all use and control to be charged in no way, and in no way to be held responsible for same during her natural life, so that the possession, control and responsibility of said Trustee in trust for the purposes and persons hereinafter named and set forth party of second part, or his successors or successor, shall only commence and be exercised at the time of the death of her, the said grantor, Sarah E. Dinsmore.
    “ This conveyance is however as aforesaid in trust nevertheless for the uses, purposes and persons and in the manner hereinafter expressed concerning the same, that is to say, from and immediately after the decease of the said Sarah E. Dinsmore, which is the termination of the reservation above set forth, the trustee above named or his heirs or successor or successors, shall hold and control said described real estate in trust and for the use of the children of said M. J. Dinsmore and Sarah E. Dinsmore, parties of the first part, which children are: James Atlas Dinsmore, Mellie May Dinsmore, now Mellie May Myers, wife of L. C. Meyers, Mary Evangeline Dinsmore, Annie Eliza Dinsmore, now Annie Eliza Gibson, wife of Harry Gibson, and Marion Adelia Dinsmore, that they may have, hold, use and enjoy said premises with the appurtenances, and in case of the decease of any of said children named then of the right heir or heirs of such deceased one, provided that the heirs of such decedent shall take by representation only the share of or which such deceased child of parties of the first part would take if living: said estate to be thus held in trust for the equal benefit, use, occupation, enjoyment and profit of said five children and their heirs .... provided that said Sarah E. Dinsmore and M. J. Dinsmore may during the life time of both of them by mutual consent and by joining in a duly acknowledged deed alter or amend this trust or entirely revoke the same or declare new and different trusts or trustee or trustees.”
    The ease stated contained the following facts:
    4. That M. J. Dinsmore, husband of Sarah E. Dinsmore, died on or about December 28, 1899, and that all of the children of the said M. J. and Sarah E. Dinsmore, named in said trust deed, were then living and of full age.
    5. That by deed dated January 8, 1902, all of said children of said M. J. and Sarah E. Dinsmore, who were named in the aforesaid trust deed, being of full age together with their respective husbands and wives, did convey said real estate, and all their interests in the same to the said Sarah E. Dinsmore, who at that time held the life estate therein, which deed was duly acknowledged and entered of record.
    6. That to No. 2, April Term, 1902, in equity in the court of common pleas of Jefferson county, Sarah E. Dinsmore filed a bill naming all of the said children of the said Sarah E. Dins-more and M. J. Dinsmore and the trustee as defendants, setting forth substantially the facts aforesaid and praying the court to decree a termination of said trust and order and decree that the trustee before named be forever discharged from said trust and that no successor be appointed.
    7. That all of said defendants admitted the facts set forth in said bill and joined in the prayer thereof.
    8. That on March 12, 1902, the said court entered a decree in accordance with the prayer of said bill, terminating said trust and discharging the trustee.
    9. That on April 18, 1902, the said Sarah E. Dinsmore, then a widow, conveyed said land described in said trust deed to George E. Schwem, by deed of general warranty recorded at Brookville.
    10. That on or about June 25,1909, said George E. Schwem agreed in writing to sell and convey the portion of said land below described to A. W. Calloway, and the said A. W. Calloway agreed to purchase the same and to pay therefor the sum of $25,500 upon the delivery to him of a good and sufficient deed for said premises conveying a marketable title.
    The court entered judgment for plaintiff on the case stated.

      Error assigned was in entering judgment for plaintiff on the case stated.

      B. M. Clark, with him A. B. Stewart, for appellants.
    It is a well-settled principle of law that a deed of trust reserving to the grantor, and postponing until his death the enjoyment of the estate, is not a testamentary instrument, nor is it revocable by the grantor, unless the deed itself provides for such revocation or shows a clear intention on the part of the grantor that’ it is to operate as a will, notwithstanding the gift is merely voluntary: Greenfield’s Est., 14 Pa. 489; Eckman v. Eckman, 68 Pa. 460; Waugh’s Exrs. v. Waugh, 84 Pa. 350; Knowlson v. Fleming, 165 Pa. 10; Wilson v. Anderson, 186 Pa. 531; Rynd v. Baker, 193 Pa. 486; Anspach v. Lightner, 31 Pa. Superior Ct. 218; Fellbush v. Egen, 221 Pa. 420.
    November 5, 1909:
    The retention of possession and enjoyment of the land conveyed while the grantor lives, does not make the instrument testamentary: Book v. Book, 104 Pa. 240; Cable v. Cable, 146 Pa. 451; Anspach v. Lightner, 31 Pa. Superior Ct. 218.
    A trust to pay the net income of realty to beneficiaries involves the exercise of discretion on the part of the trustee, and creates an active and continuing trust notwithstanding the property is left to certain named children, and at their death, to their heirs: Hemphill’s Est., 180 Pa. 95; McIntosh’s Est., 158 Pa. 528; Koutzleman’s Est., 21 W. N. C. 467.

      A. L. Cole, for appellee,
    cited: Turner v. Scott, 51 Pa. 126; Harter’s App., 190 Pa. 476; Coulter v. Shelmadine, 204 Pa. 120; Frederick’s App., 52 Pa. 338; Rick’s App., 105 Pa. 528; Chestnut St. Nat. Bank v. Fidelity Ins., etc., Co., 186 Pa. 333; McCullough v. Johnetta Coal Co., 210 Pa. 222.
   Per Curiam,

If the instrument in question was testamentary it was of course revocable, and was revoked by the subsequent conveyance.

If, however, it was a deed, then the alleged trust created an estate in fee simple or at least in fee tail, which was executed by the statute, in the five heirs of Sarah E. Dinsmore, and the plaintiff, holding a conveyance from all the said heirs, has the entire title.

In either view the judgment must be affirmed.