author: Pee Cueiam,

text:
    Hook, Appellant, v. Jones.

      Contract — Collateral security — Stock as collateral.

    In an action of assumpsit it appeared that plaintiff paid to the defendant $8,000 and received from defendant two blocks of stock, one of preferred and one of common stock of a mining company. At the time of this transaction a written agreement between the parties was executed by which the defendant agreed to pay upon demand, and after the expiration of a certain period, the sum of $8,000 “upon the transfer of said preferred stock,” to defendant. It was also provided that to secure said payment defendant would give his promissory note, and that “the certificate of said preferred stock shall also be attached in the nature of collateral security to the said promissory note,” and that upon the payment of the note the said preferred stock shall be returned to defendant. The agreement made no mention of the common stock. The defendant in his affidavit of defense averred that the common stock belonged with the preferred stock, and that plaintiff was not entitled to recover unless he returned the common as well as the preferred stock. Held, that the affidavit of defense was sufficient to prevent judgment.

      Argued March 28, 1906.
    Appeal, No. 94, Jan. T., 1906, by plaintiff, from order of C. P. No. 4, Phila. Co., June T., 1905, No. 4,999, discharging rule for judgment for want of a sufficient affidavit of defense in case of John H. Hook v. Charles F. Jones.
    Before Mitchell, C. J., Fell, Pottee, Elkin and Stewaet, JJ.
    Affirmed.
    Rule for judgment for want of a sufficient affidavit of defense.
    Plaintiff averred in his statement as follows:
    On or about February 29, 1904, the plaintiff and the defendant entered into a certain oral agreement, whereby the plaintiff undertook and agreed to pay the defendant the sum of f 8,000 in consideration of receiving from the defendant 8,000 shares of the preferred capital stock of a corporation known as the Red Mountain Railroad, Mining & Smelting Company, 16,000 shares of the common stock of the said company, and a certain agreement in writing and a certain promissory note, whereby the defendant would undertake and agree to repay to the plaintiff the said sum of 18,000 on the terms and conditions more particularly set forth in the said written agreement and in the said note.
    In pursuance of the said contract the plaintiff paid the defendant the sum of $8,000 at or about the time of the making of the said contract, and the defendant then and there delivered to the plaintiff 8,000 shares of the said preferred stock and 16,000 shares of the common stock of the Red Mountain Railroad, Mining & Smelting Company, and also an agreement in writing of which the following is a copy :
    “ This agreement, made this 29th day of February, A. D. 1904, between Charles F. Jones, of Philadelphia, Penna., of the first part, and John A. Hook, of Lancaster, Penna., of the second part.;
    “ Whereas the said party of the first part desires to sell to the said party of the second part 8,000 shares of the eight per cent, preferred capital stock of the Red Mountain Railroad, Mining & Smelting Company ;
    “Now this agreement witnesseth, that in consideration of the purchase of said stock by the said party of the second part for $8,000, the said Charles F. Jones covenants, agrees and guarantees to and with the said party of the second part as follows, to-wit:
    “ 1. The said Charles F. Jones will pay or cause to be paid unto the said party of the second part or his assigns, sixty days after demand, the demand not to be made until the expiration of one year from date hereof, the sum of 18,000 upon the transfer of said preferred stock to the said Charles F. Jones or his assigns ; provided that the receipt by the said party of the second part or his assigns of any sum or sums of money from any source by reason of his or their ownership of said preferred stock shall be taken as a payment on account of said sum.
    “ 2. The said Charles F. Jones will secure said payment by executing his promissory note for |8,000, payable sixty days after demand, the demand not to be made until one (1) year from the date of this contract, to the order of said John H. Hook, party of the second part, and to attach thereto a certificate of interest for 400 shares of the capital stock of the Mexican Mining & Smelting Company, a corporation under'the laws of the state of New York, as collateral security.
    “ And it is agreed by the parties hereto the certificate for the said preferred stock shall also be attached in the nature of collateral security to the said promissory note, and upon the payment of the said note at or before maturity, or upon the payment to or receipt by the said party of the second part or his assigns of the said sum at or before the time hereinabove mentioned for its payment, from any source whatever by reason of his or their ownership of said preferred stock, the said note together with the said certificates shall be returned to the said Charles F. Jones or his assigns.
    “If the said party of the second part shall negotiate the said note, and paymeut thereof shall not have been demanded from the said Charles F. Jones, the party of the second part agrees to procure a demand to be made thereon in order to mature the note if the said Charles F. Jones shall request him to do so.
    “Notwithstanding anything herein contained the said Charles F. Jones shall have the option at any time hereafter before the time above limited for the payment thereof, to pay the above-mentioned sum to the said party of the second part or his assigns, and when such payment shall be made the said note and the said certificates attached thereto shall be returned to the said Charles F. Jones ; provided that in no event shall the said note and the said certificates be returned to the said Charles F. Jones unless and until the eight per cent, preferred dividend on said preferred stock shall have been paid to the person entitled thereto for the period during which said stock shall have been outstanding.
    “ Witness our hands and seals the date above written.
    “Chas. F. Jones, [Seal].
    “JohnH. Hook. [Seal].
    “ $8,000. Phila., Penna., Feb. 29, 1904.
    “ On or before one year, I promise to pay to the order of
    John H. Hook.............................................
    Eight thousand and no-100.........................Dollars,
    without defalcation for value received by me, and have deposited herewith Four hundred shares of the Mexican Mining &
    Smelting Company....................as collateral security
    for the prompt payment at maturity of this and any other liability or liabilities of the undersigned, due or to become due, or that may be hereafter contracted with the holder of this note, which collaterals, either the whole or any part thereof, 1 hereby authorize and empower the holder of this note, should the same or any other liability of the undersigned as above described, be not paid at maturity, to sell at public or private sale at any time or time thereafter, without further notice, and with the right of becoming the purchaser at such sale or sales, of the whole or any part of said collaterals, freed and discharged of any equity of redemption, and to transfer, assign and deliver the same; and after deducting all legal and other costs, attorney fees and expenses of collection, sale and delivery, to apply the residue of the proceeds of such sale or sales, to pay any, either or all of said liabilities as said holder shall deem proper, returning the overplus, if any, to me ; and should any deficiency occur, I further promise and agree to pay the holder thereof on demand.
    “ Payable at West End Trust Company, Philadelphia, Pa.
    “ Due 2-28-05. Chas. F. Jones.”
    And the defendant also delivered to the plaintiff a certificate of interest in 400 shares of the Mexican Mining '& Smelting Company, as provided for in the said contract and note.
    On or about February 27, 1905, the said plaintiff made a demand upon the said defendant for the payment to him of the amount due on the said note.
    Notwithstanding the said demand, the defendant declined to pay the amount due to the plaintiff as aforesaid, unless the plaintiff would surrender and deliver to him the 16,000 shares' of the common stock of the Red Mountain Railroad, Mining & Smelting Company, which, in accordance with the terms of the said contract, as the plaintiff is advised by counsel, belonged absolutely to the plaintiff.
    The said note and the said preferred stock of the Red Mountain Railroad, Mining & Smelting Company, and the said certificate of interest in the Mexican Mining & Smelting Company, have been since the making of the said contract and are now under the control of the plaintiff, and he always has been, and is now, ready to surrender the same to the defendant upon receiving the amount due to- him as aforesaid.
    Defendant filed an affidavit of defense in which he averred as follows:
    The sale of stock to plaintiff under the agreement of February 29, 1904, was of 8,000 shares of preferred stock of said company and 16,000 shares of common stock of said company, for the sum of $8,000. In consideration of the purchase, defendant guaranteed that if, at the end of a year, plaintiff was not satisfied with his purchase, defendant would repay him the $8,000 on the return to defendant of the stock. This guarantee was secured by the promissory note in suit. The 8,000 shares of preferred stock and 16,000 shares of common stock were delivered to plaintiff, and the $8,000 paid by him, immediately after the execution of said written agreement in February 29, 1904. The common stock was not specifically mentioned in said written agreement, but was included in the expression “ preferred stock,” because at the time of the execution of the agreement said common stock was represented and agreed as being included in the sale of the preferred stock, and on the strength of that representation and agreement the written agreement simply mentioned the preferred stock.
    The 16,000 shares of common stock were not given to plaintiff as a bonus or compensation for purchasing the 8,000 shares of preferred stock, but constituted a part of the purchase, and were so delivered.
    May 14, 1906 :
    The court discharged the rule for judgment for want of a sufficient affidavit of defense.

      James Collins Jones, for appellant.

      JS. Cooper Shapley, for appellee.
   Pee Cueiam,

The common stock which is the real subject of controversy here was part of the collateral security for the loan or payment of the $8,000 involved in the original transaction. Prima facie, therefore, it was to be returned on payment. The written contract is entirely silent in regard to it and it first appears in the affidavit of defense where it is averred “ to belong with the preferred stock.” For purposes of judgment this averment must be taken to be true, and the burden is on plaintiff to prove the contrary.

Judgment affirmed.


source: Caselaw Access Project

author: Per. Curiam,

license: Public Domain

text:
    Birkbeck’s Estate.

      Husband and wife — Antenuptial agreement — Contract.
    A man sixty-four years of age and a woman fifty-one years of age entered into an ante-nuptial agreement by which each released all claim on the other’s estate, except “only as to any testamentary provision that may be hereafter made by one in favor of the other.” The wife had no estate of her own, and she know that her husband was in comfortable circumstances. She did not know the amount of his estate which at the time of the marriage was $193,000. A few days before his death the husband made his will leaving his wife $100,000 and legacies to other persons amounting together with the wife’s legacy to $132,000. The estate proving larger than the husband supposed, there was found to be after his death an intestacy as to $60,000, as to which the widow claimed her widow’s portion. Held, (1) that no fraud or concealment had been committed by the husband in connection with the ante-nuptial contract; (2) that the fact that the husband underestimated his fortune afforded no reason for disregarding the agreement; (3) that the widow’s claim was properly disallowed.

      Argued April 9, 1906.
    Appeal, No. 219, Jan. T., 1905, by Mary Birkbeck, from decree of O. C. Luzerne Co., No. 468 of 1900, dismissing exceptions to adjudication in Estate of Joseph Birkbeck, deceased.
    Before Mitchell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to adjudication.
    Freas, P. J., found the facts to be as follows:
    Joseph Birkbeck died testate November 14,1900. He left a widow, Mary Birkbeck, the claimant, no children, and numerous collateral heirs. By his will, written four days before his death, he made this bequest to his widow: “ It is my desire that my wife, Mary Birkbeck, shall inherit the sum of ($100,000), one hundred thousand dollars, the proceeds of stocks or bonds, or equal to that amount, it is my desire the same shall be given to Eleanor Annie Wadsworth, at the death of Mary Birkbeck.” The will also contains this clause: “ All real estate shall be converted into cash, with the exception of the property at the corner of Dana and Grove Streets, which shall be held in reserve for my widow, together with all household utensils, except the piano and music, which I desire to be set apart for my step-daughter for her sole and separate use.” He also gave to the said Eleanor Annie Wadsworth, who is the daughter of his wife by a previous husband, $5,000. To his nephews and nieces, twenty-two in number, he gave $500 each, and a few other small bequests. All the bequests amount to $182,668.12, with interest, and less collateral inheritance tax. His personal property was inventoried after his death at $254,661.45, and he therefore died intestate as to the difference. His real estate, including that specifically devised, was worth about $30,000. After the payment of all the legacies there will remain for distribution under the intestate laws, in this audit alone, $60,193, and of this sum the widow claims a widow’s portion, or one-half, or the sum of $30,096.50.
    To defeat this claim the heirs set up an alleged ante nuptial contract entered into between the widow and decedent, bearing date February 21, 1895; which was acknowledged at the time of signing before J. N. Davidson, a notary public, and witnessed by him, and which was recorded in the recorder’s office of this county, April 22, 1895. This agreement, under seal, is formally drawn and in it, inter alia, the decedent releases all claim to her estate and she releases any interest she may have in his estate, either as his wife by dower, exemption or otherwise, saving only such testamentary provision as he should thereafter make in her behalf.
    # -;*c- ^ # -‡- % -t- #
    At about the time the contract was entered into decedent was sixty-four years old and was worth about $193,000. Claimant was fifty-one years old; had been previously married; had traveled extensively, was intelligent and in every way qualified to protect her interests. She possessed no means of her own and had been acting as his housekeeper for several years. She alleges that on the day the contract was signed decedent called her in from the kitchen and asked her to sign the paper, and she signed it; only the bottom part was left unfolded; that there was a man present who took her acknowledgment; the paper was not read or explained to her, and she did not read it nor did she ask about it, and did not know what it was about until after the decedent’s death. He made no disclosure of his worth to her, but she knew he was in comfortable circumstances. Shortly before his death he told her if his relatives made any trouble for her she should upset his will and claim a wife’s portion. As it turned out, his last will was contested by his relatives and was defended by his widow, who accepted the legacy therein given, and now occupies the house which he directed should be held in reserve for her, worth about $6,000, and which acceptance was after full knowledge of the terms of the contract. If we believe her testimony we must conclude that the decedent by a trick obtained her signature to a contract which she would not have willingly signed, and that the notary was a party to it. In other words, after the death of the other party to a solemn contract under seal, and of the only witness to it, we are asked to accept the testimony of the survivor that her signature was obtained by fraud. She was under no duress, and could read and write, and the law presumes that under such circumstances persons who sign papers do so with a full knowledge of their contents ; otherwise most contracts would not be worth the paper they are written on. The decedent in this case might have kept the contract among his private papers, but instead he recorded it in the recorder’s office, which is to our mind strong proof that no concealment was practiced, and we so find: Smith’s Appeal, 115 Pa. 319.
    May 14, 1906 :
    # # # * * #
    Under all the circumstances in this case there can be no donbt that the provision made by testator for his widow is reasonable, even genex’ous, and ample for her maintenance, and considering her previous estate she is most fortunate indeed. Her claim to a share of decedent’s estate under the intestate laws is not allowed.

      Error assigned was the decree of court.

      Henry A. Fuller, for appellant.

      H W. Palmer, with him O. O. Stroh and J. T. Lenahan, for appellees.
   Per. Curiam,

The parties, husband and wife, by ante-nuptial contract released all claim on each other’s estate except “ only as to any testamentary provision that may be hereafter made by one in favor of the other.” Both were elderly people, and appellant had been married before. It was found by the court below that the agreement was in fact fairly and openly made, and though the husband’s. exact means were not stated appellant knew “ he was in comfortable circumstances.” She had no estate of her own, and from a pecuniary point of view the marriage was altogether favorable to her. Under the circumstances no presumption of fraud or concealment ever arose.

Even looking at the agreement in its most extreme aspect in appellant’s favor as an agreement for such a share of his estate as in good faith he should provide for her, the obligation was fully met. At the time of marriage he was worth about $193,000, and he left his widow more than half of that amount. His estate turned out to be somewhat larger than he himself appears to have estimated, so that in fact there was an intestacy as to part of it. But this subsequent result affords no reason for disregarding an agreement which on the facts as they existed at the time of making was carried out by the husband, not only justly but generously.

Decree affirmed with costs.


author: Per Curiam,

text:
    Pennsylvania Coal & Coke Company, Appellant, v. Witherow.

      Mines and mining — Coal lease — Minimum royalty — Forfeiture.
    A coal lease provided for the payment of ten cents per ton royalty on all merchantable coal mined or that could reasonably be mined; that the lessee should begin the shipment of coal within four months “ or pay a minimum royalty on thirty thousand tons per year in lieu thereof; and to pay continuously a minimum royalty at the rate of thirty thousand tons per year until said coal was exhausted.” It was further provided “if the minimum amount was not mined, but paid for, that the excess of all sums over and above the coal actually mined shall be applied on the coal to be mined in succeeding months so that in the end no more coal shall be paid for than is actually mined and taken out under this lease.” A supplemental agreement was afterwards made which provided for the payment of fixed amounts of royalties each month, making the total annual payment $2,000, and that if the lessee “ .... in any year fail to mine the full minimum of thirty thousand tons called for in the lease, he or his assigns shall pay to the lessor a bonus of sixty dollars for each year he fails to mine the full minimum in addition to the sum hereinbefore specified in this supplement, the sixty dollars not to be deducted from any royalty otherwise due .... the original lease to be and remain unchanged in all other respects.” Held, (1) that the supplemental agreement was an absolute contract by the lessee to pay the lessor the fixed sum named therein at fixed times regardless of all other conditions; (2) that in the absence of proof that the plaintiff had paid royalty for all coal that could be mined, the provision of the original lease “that in the end no more coal should be paid for'than is actually mined” did not become operative; and (3) that overpayment for the coal actually mined did not relieve the lessee from the payment of minimum royalty as long as the lessee remained in possession.
    Argued April 16, 1906.
    Appeal, No. 360, Jan. T., 1905, by plaintiff, from decree of C. P. Clearfield Co., May T., 1905, No. 1, dismissing bill in equity in case of Pennsylvania Coal & Coke Company v. David Witlierow.
    Before Fell, Bbown, Potter, Elkin and Stewart, JJ.
    Affirmed.

      May 14, 1906:
    Bill in equity for an injunction. Before Smith, P. J.
    The facts are set forth in the opinion of the Supreme Court.
    The court entered the following decree :
    1. That the plaintiff’s bill be dismissed.
    2. That the preliminary injunction issued March 15, 1905, be dissolved.
    3. That the plaintiff pay to the defendant the sum of $1,729.69, with interest thereon from June 1, 1905, in full of royalties and bonus due at that date.
    4. That the plaintiff pay the costs of this proceeding.

      Error assigned was the decree of the court.

      Peter J. Little, with him Thomas H. Atherton, for appellant.

      A. L. Cole, with him F. Blake Kuntz, for appellee.
   Per Curiam,

The bill in this case was filed by the lessee of coal lands to restrain the lessor from taking possession of the leased property and from enforcing any of the remedies provided by the lease in case of a failure to pay royalties. The primary question in the case is whether under the terms of the lease the lessee in possession, having paid royalties for all the coal actually mined, is relieved from further payment. The lease provides for the payment of ten cents per ton royalty on all merchantable coal mined or that could reasonably be mined, that the lessee shall begin the shipment of coal within four monthsor pay a minimum royalty on 30,000 tons per year in lieu thereof; and to pay continuously a minimum royalty at the rate of 30,000 tons per year until said coal is exhausted.” It is further provided “ if the minimum amount is not mined but paid for, that the excess of all sums over and above the coal actually mined shall be applied on the coal to be mined in succeeding months so that in the end no more coal shall be paid for than is actually mined and taken out under this lease.” The lessee was given the right of way through any opening in the mine to remove coal from adjoining lands, but no such right was claimed and it is not involved in the controversy.

A supplemental agreement was afterwards made which provided for the payment of fixed amounts of royalties each month, making the total annual payment $2,000, and that if the lessee “ in any year fail to mine the full minimum of 30,000 tons called for in the lease, he or his assigns shall pay to the lessor a bonus of $60.00 for each year he fails to mine the full minimum in addition to the sum hereinbefore specified in this supplement, the $60.00 not to be deducted from any royalty otherwise due — the original lease to be and remain unchanged in all other respects.”

It was undisputed that the royalties paid amounted to more than ten cents per ton on all the coal actually mined. The learned judge found as a fact in the case that a large part of the property had not been sufficiently explored to ascertain whether there was merchantable coal that could reasonably be mined, and that the evidence did not show that all the merchantable coal had been mined, and he found as matter of law that the supplemental agreement “ is an absolute contract by the lessee to pay the lessor the fixed sum named therein at fixed times regardless of all other conditions.”

The first of these findings sustains the decree dismissing the plaintiff’s bill and directing an accounting under the cross bill, and it is needless to go further. In the absence of proof that the plaintiff had paid royalty for all coal that could be mined, the provision of the original lease “ that in the end no more coal should be paid for than is actually mined ” did not become operative. Overpayment for the coal actually mined did not relieve the plaintiff from the payment of the minimum royalty as long as it remained in possession: Lehigh, etc., Coal Co. v. Wright, 177 Pa. 387 ; Lehigh, etc., Coal Co. v. Everhart, 206 Pa. 118.

The decree is affirmed at the cost of the appellant.


text:
    Kreamer v. Smith, Appellant.

      Contract• — Sale—Partnership—Judgment note.

    Where a partnership consisting of two persons sells all of the lumber manufactured by it at a fixed price, and is paid for it in advance of delivery, one of the partners cannot sell his interest in the partnership and take a judgment note therefor, assuring the purchasers of the lumber that the contract will be carried out by a new partnership, and assign the note to a bank as collateral for an antecedent indebtedness, and give the bank the right to levy under the judgment entered on the lumber not delivered to the purchasers.
    Argued April 16, 1906.
    May 14, 1906:
    Appeal, No. 363, Jan. T., 1905, by defendant, from judgment of C. P. Clearfield Co., Sept. T., 1903, No. 379, for plaintiffs on feigned issue in case of Kreamer, Stevenson & Company v. The Citizens’ National Bank of Warren, Pa., E. Cangewer, A. McMartin and Y. Y. Smith.
    Before Fell, Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Feigned issued to determine title to property levied on by sheriff. Before Smith, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in entering judgment for plaintiffs on feigned issued tried by the court without a jury.

      Edward Lindsey and A. L. Gole, with them E. Blake Kuntz and Earle MacDonald, for appellant.

      Thomas H Murray, with him W. G. Pentz, Hazard A. Murray and J. P. O'Laughlin, for appellee.
   Per Curiam,

This was a feigned issue, referred to the court without a jury, to determine the title to property levied on by the sheriff. It was shown at the trial that Smith and Cangewer were in possession of a tract of timber land and of mills and appliances for manufacturing lumber. Smith negotiated with the plaintiffs to sell to them the lumber manufactured and to obtain advance payments for it. The agreement made was that the plaintiffs should buy all the lumber at fixed prices per thousand feet, delivered on cars, and that they should advance their notes from time to time to enable Smith and Gangewer to manufacture the lumber and store it until it was fit to ship. While this agreement was being carried out, Smith sold his interest in the partnership, and a new partnership of Gangewer and McMartin was formed. Smith took the judgment notes of this partnership in payment of his interest. He notified the plaintiffs that he had sold his interest but that the contract he had made with them would be carried out by the new partnership. He assigned the judgment notes to The Citizens’ National Bank of Warren, the use plaintiff, as a collateral security for an antecedent indebtedness. The levy was by writs issued on judgments entered on these notes. The property in question is the lumber not delivered on cars but at the mill and in the pond and woods.

Both the old and the new partnership sent the plaintiffs statements and inventories of the lumber manufactured, and they received from the plaintiffs from time to time payments in excess of the price of all the lumber delivered and the lumber levied on. The plaintiffs, a short time before the levy, sent an inspector who, after a careful examination of the lumber manufactured at the mill and the lumber in the woods, made the last payment by note.

The rights of the use plaintiff in the judgment rose no higher than Smith’s, and the question is whether he could cause a levy to be made on property which he had sold to the plaintiffs in the interpleader and for which they had paid in full to him and to the parties who were carrying out his contract, the payments to the latter having been made upon his assurance that the contract would be carried out. The sale was of all the lumber at a fixed price per thousand feet, the full price had been determined by a careful inspection of the undelivered lumber and had been paid, in fact overpaid, in advance of delivery. The vendees did everything in their power to complete the sale between the parties and all that remained to be done was delivery by the vendors. Whether the title had passed or not, Smith was estopped to sell the property to secure payment of his notes, to the injury of parties who had relied upon his acts and representations.

The judgment is affirmed.


text:
    Kelly Springfield Road Roller Company, Appellant, v. Spyker.

      Sale — Conditional sale — Bailment—Personal property.

    The mere use of the words “lease” and “rental” in an agreement in writing relating to personal property, will not convert into a bailment what must otherwise be construed as a conditional sale.
    Argued April 17, 1906.
    May 14, 1906 :
    Appeal, No. 76, Jan. T., 1906, by plaintiff, from judgment of C. P. Huntingdon Co., Dec. T., 1905, No. 49, for plaintiff on feigned issue in case of Kelly Springfield Road Roller Co. v. S. I. Spyker.
    Before Fell, Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Feigned issue to determine title to a steam road roller. Before Woods, P. J.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned amongst others was in refusing binding instructions for plaintiff.

      E. H. Waite, with him C. O. Brewster, for appellant.

      Samuel I. Spyker, with him O. H. Whittaker, for appellee.
   Per Curiam,

This was a feigned issue to determine the title to a steam road roller delivered to the defendants in the execution under the following offer, signed by the plaintiff’s general sales agent: “ Order subject to acceptance by the home office. Syracuse, New York, May 18,1905. Mountain & Malone, Holidaysburg, Pa. Dear Sirs: We hereby agree to lease you one ten-ton steam road roller as good as new, f. o. b., Springfield, Ohio, for the full sum of $2,000, payable as follows : July 1, $250; September 1, $250, etc.; roller to have a band wheel. We will guarantee roller to be first-class; used only three months. To be shipped to Huntingdon, Pa.” The offer was accepted. “We accept above proposition and agree to deliver you said roller in case we fail to make monthly payments.” The following supplemental agreement was made : “ August 31, 1905. It is hereby agreed that we are to give notes for the rental installments falling due November 1, 1905, and thereafter, which notes shall not be considered as payment of said installments until paid in cash.”

There is nothing about this agreement that suggests a bailment except the use of the word “ lease ” in the first line, and of the word “ rental ” in the supplement. But these words were evidently used to give another name to what was meant to be a conditional sale. The agreement has none of the indications of a lease. There is no term mentioned, and there is no provision for the return of the roller except in case of default in making monthly payments. Although fixing a term and providing for a return at the end thereof may not be essential to a bailment, they are important, and often controlling evidence of the intention of the parties. If the word “sale” be substituted for “ lease ” in the first line, we have the usual form of an offer by an agent, subject to the approval of his principal, and an acceptance by the purchaser. It appeared from the testimony that the payments provided for equaled in amount the full market price of the roller, and the manifest purpose,of the arrangement was to secure the payment of the price of the roller by retaining the title after having parted with possession. As against creditors this cannot be done.

The judgment is affirmed.


text:
    Colt’s Case.

      Lunacy — Weak-minded persons — Control of property — Act of June 19, 1901, P. L. 574.
    The Act of June 25, 1895, P. L. 300, as amended by the Act of June 19, 1901, P. L. 574, which permits interference with the primary right of a person to control and dispose of his own estate during his life, should not be enforced except in clear cases for the benefit of a person unable to take care of his property.
    The act will be applied in proceedings instituted by disinterested parties from proper motives and solely to preserve the respondent’s estate for his own good, where it appears that the respondent was mentally weak, that he had transferred the whole of his personal property, recently acquired by inheritance, in exchange for an interest in a manufacturing corporation of which he had no knowledge whatever, and that he knew neither the value of the stock he was to receive, how much he was to get, nor how much he was to pay for it.
    Since the act gives to the party against whom the proceedings are taken the right to demand a trial by jury, it does not violate the provisions of the Declaration of Rights — -“Trial by jury shall be as heretofore and the right thereof remain inviolate.”
    Argued April 23, 1906.
    May 14, 1906:
    Appeal, No. 151, Jan. T., 1905, by-Charles B. Colt, from order of C. P. Erie Co., May T., 1905, No. 21, appointing guardian for weak-minded person in the matter of Charles B. Colt, alleged weak-minded person.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Petition by the directors of the poor of Erie county praying for the appointment of a guardian for Charles B. Colt.
    The court entered the following decree :
    And now, April 3, 1905, due notice of the proceedings in above case having been given according to law, and Charles B. Colt, the party against whom the proceedings were taken, having been present at the hearing, and the court having heard all the testimony offered on both sides, including that of said respondent, the court being clearly satisfied that said Charles B. Colt is not able owing to weakness in mind to take care of his own property, the court does so decide and decree, and L. B. Jones, Esq., is appointed guardian to take care of the property of said Charles B. Colt. The costs of this proceeding to be paid out of respondent’s estate. Said guardian to give bond in the sum of five thousand dollars.

      Error assigned was the decree of the court.

      L. E. lorry, for appellant.

      Erank Gunnison, with him Miles R. Nason, for appellee.
   Per Curiam,

In Hoffman’s Estate, 209 Pa. 357, it was said by the present Chief Justice that the Act of June 25, 1895, P. L. 300, “ establishes a legal status or condition, intermediate between normal .mental capacity and insanity or lunacy, a state of weak or enfeebled mind, neither mens sana nor non compos mentis,” and that it is a “ dangerous Statute easily capable of abuse by designing relatives to accomplish the very wrong intended to be guarded against, and therefore to be administered by the courts with the utmost caution and conservatism.” This act and the Act of June 19, 1901, P. L. 574, amending it, permit interference with the primary right of a person to control and dispose of his own estate during his life. Such interference should not be allowed except in clear cases for the benefit of a person unable to care for his property: Bryden’s Estate, 211 Pa. 683.

The testimony in this case, however, fully warrants the findings of fact and the decree based on them. It appeared at the hearing that the appellant was because of mental weakness unable intelligently to manage his business affairs. Lie had transferred the whole of his personal property, recently acquired by inheritance, in exchange for an interest in a manufacturing corporation of which'he had no knowledge whatever. He knew neither the value of the stock he was to receive, how much he was to get, nor how much he was to pay for it. The proceeding was instituted by disinterested parties manifestly from proper motive and solely to preserve the appellant’s estate for his own good.

■Since the act gives to the party against whom the proceedings are taken the right to demand a trial by jury, it does not violate the provision of the declaration of rights that “ Trial by jury shall be as heretofore and the right thereof remain inviolate.”

The decree is affirmed.


author: Pee Curiam,

text:
    Saltsman, Appellant, v. Olds.

      Municipalities — City of Erie — Commissioners of waterworks — Contracts.
    The commissioners of waterworks of the city of Erie created by the Act of April 4, 1867, P. L. 768, are a board wholly independent of the city authorities. They have entire control of the funds in their hands, and they can make a contract in connection with the waterworks which will not in any way create a debt, or make a liability against the city of Erie.
    Argued April 23, 1906.
    Appeal, No. 234, Jan. T., 1905, by-plaintiffs, from decree of C. P. Erie Co., May T., 1905, No. 6, dismissing bill in equity in case of Robert J. Saltsman and A. S. Pinney v. Clark Olds, Gustave F. Brevillier, Willis B. Durlin and The T. A. Gillespie Company.
    Before Fell, Blown, Mestkezat, Pottek and Elkin JJ.
    Affirmed.
    Bill in equity for an injunction. Before Walling, P. J.
    From the record it appeared that the plaintiffs were the mayor and treasurer of the city of Erie, and that the three individual defendants constituted the commissioners of waterworks of the city of Erie, a board created by the Act of April 4, 1867, P. L. 768. The bill alleged that the commissioners had entered into a contract with the T. A. Gillespie Company to extend an intake of the waterworks, and that said contract was null and void as an attempt to increase the debt of the city of Erie illegally, and that it was made without an appropriation first having been made by the councils of the city of Erie. The bill prayed for an injunction.
    Walling, P. J., after an elaborate statement of the facts found the following conclusions of law:
    1. That the general acts for the government of cities of the third class effect a repeal of inconsistent prior local acts relating to such cities. And when the city of Erie accepted the Wallace act all prior local acts inconsistent therewith were repealed.
    2. General acts relating to cities of the third class do not repeal prior local acts which are consistent with such general acts. So when Erie city became a city of the third class it retained such of its local laws as were consistent with the statutes relating to cities of that class.
    3. The Act of April 4, 1867, P. L. 768, is not inconsistent with the Wallace act, nor with the Act of May 23, 1889, P. L. 277, “ Providing for the incorporation and government of cities of the third class,” nor with any other act relating to cities of that class. And said act of 1867 has not been repealed or supplied by any subsequent legislation, but is still in full force.
    4. That the commissioners of waterworks in the city of Erie appointed under said act of 1867, are a board with corporate powers, and independent of the city authorities, except as provided in said act.
    5. That the legal title to the waterworks property is in said commissioners, but they have no .power to dispose of said property or to use the same for any purpose other than that specified in the above-quoted statutes. That the city of Erie is the equitable owner of the entire waterworks property.
    6. That under existing laws the control and management of said waterworks is vested in said commissioners, and the duty of appointing the commissioners rests with the judges of the court of common pleas of Erie county. That the status of the waterworks and the manner of appointing the commissioners thereof can be changed by appropriate legislation relating to cities of the third class.
    7. That sec. 2 of article XY of the constitution of Pennsylvania, which provides that “ No debt shall be contracted or liability incurred by any municipal commission, except in pursuance of an appropriation previously made therefor by the municipal government,” does not apply to this case, as the board of water commissioners are not creating any debt nor making any liability against the municipality.
    8. That the funds of the waterworks are not subject to the control or appropriation of the city council; such funds can be used only by the commissioners and for the single purpose of paying the indebtedness of the waterworks.
    9. That the new constitution did not abolish existing commissions.
    10. That the contract between the commissioners of waterworks and the T. A. Gillespie Company is valid and should be fulfilled. That the statute expressly empowers the commissioners to obtain a supply of water from Lake Erie, and the conditions are such as to justify the exercise of that power. That to set aside that contract at this late day and after the large expense has been incurred, would cause the defendants • irreparable loss and would also be a misfortune to the public.
    11. That it is now too late for the' sinking fund commissioners to ask to have this contract annulled, that the money of the waterworks in the treasury might be applied to the city’s indebtedness.
    12. That no relief could be granted in this case not common to all the defendants.
    13. That the action of the city councils in 1881 in attempting to create a water department in the city of Erie was invalid.
    14. That the water commissioners are appointed under the act of 1867, and entitled to compensation as named therein.
    15. That plaintiffs are not entitled to the relief sought, or any part of it, and that a decree should be made dismissing the bill at their costs.
    DISCUSSION.
    As to the repeal of the Act of 1867, P. L. 768.
    There is no provision in the Wallace act which, in my opinion, supplies the place of or supersedes our local act.
    Section 50 of the Wallace Act (P. L. 1874, page 230), authorizes the city to purchase the rights and franchises of gas and water companies. And clause 1 of said section provides that “ Any city erecting or purchasing water or gas works under the provisions of this act, shall and they are hereby required to constitute a department to be called the water and gas department,” etc. But clearly that cannot apply to our case. Our waterworks were neither erected nor purchased under the provisions of that act. And the attempt made in 1881 to establish a water department was invalid because the city had not complied with the act, by purchasing or erecting either gas or waterworks. The attempt was irregular also because it purported to establish a water department only, when the act says the department shall be called “ the water and gas department.”
    Section 2 of article 12 of the Act of May 23,1889, P. L. 277, provides that “ Any city which now has the title to any water, gas or electric light works, by conveyance to the same in its corporate name, or which may hereafter erect or purchase water, gas or electric light works under the provisions of this act, are hereby empowered to create a department to be called the water and lighting department,” etc. Erie did not then have any such works by conveyance to it in its corporate name, nor has it since erected or purchased any ; it is, therefore, very clear that our case does not come under that act, and Erie has never attempted to establish any department thereunder.
    The acceptance of the Wallace act only operated to repeal such local laws as were inconsistent with it. In sec. 56 of said Act (P. L. 1874, page 230), it is provided that “ no such acceptance shall be construed to be a repeal or surrender of any rights, powers, privileges and franchises heretofore by law conferred on such city, not inconsistent with the provisions of this act.” See also City of Williamsport v. Brown, 84 Pa. 438. The acts relating to cities of the third class do not change the title to any property. Hence, the legal title to the waterworks property must be where the act of 1867 placed it, in the commissioners of waterworks in the city of Erie. Municipal government is the creature of the legislature ; what the legislature gave it can take away. There are no private vested rights. The water commissioners as individuals have no greater rights in the waterworks than any other citizens. The title is in the board, not the men. While local or special acts of this nature cannot now be enacted, yet they may be repealed, and provisions relating to cities of our class may be made so as to transfer the title to the city; and also changing the mode of appointing the commissioners so as to provide for their election by the citizens or by the councils, or by appointment by the mayor. The whole matter rests with the legislature chosen by the people. It is of no advantage to the court to appoint the commissioners. In every instance the legislative intent has been clear not 'to include Erie’s waterworks under the general laws. For even the late Act of May 16, 1901, P. L. 224, in sec. 10 thereof, on page 233, water boards like this are exempted from its operation. The new constitution did not avoid existing commissions.
    Perkins v. Slack, 86 Pa. 270. In that case it was held that appropriation must be made, as the commission were using the money of the city. In our case the water commissioners are using their own money, over which the city councils have no control. The councils cannot appropriate the funds of the waterworks, either for the use of the commissioners of waterworks or for any other purpose. The status of the waterworks in Erie City is stated by the Supreme Court in case of Ashby v. City of Erie, 85 Pa. 286, as follows :
    “ The water commissioners, under the act creating commissioners of water works of the city of Erie, are a board wholly independent of the city authorities. ' Whether it is wise to separate so widely a function so intimately connected with the welfare of the city from the control of the councils, is a question for the legislature, not for us. We cannot see how the city, under the law in question, can be held liable for the negligence of the water commissioners, who are appointed by the court, and neither account to nor owe obedience to the city authorities.”
    That decision was since the adoption of the new constitution, and we believe that the funds of the waterworks are not subject to appropriation by councils. In our opinion, the constitutional provision requiring an appropriation before the incurring of a liability by a municipal commission applies to cases where the commission is using the funds of the city, or where the contract of the commission binds the city. Here the commissioners are not using the money of the city, nor do their contracts bind the city. They are using their own money, and their contracts are valid as against the commissioners of waterworks in the city of Erie. And, as they have funds on hand sufficient to pay for the improvement now in process, no increase of debt is made against anyone, and the water board in Erie City is more than a municipal commission. It is a corporation.
    The case of Bork v. City of Buffalo, 127 N. Y. 64 (27 N. E. Repr. 355), is somewhat like this, and there it is held that the provision of the charter of the city of Buffalo, which prohibits said city from entering into a contract for any work or improvement, with certain exceptions, at a price exceeding 1500 until the assessment therefor has been confirmed, does not apply to the board of park commissioners of said city to the contracts made by them, that “ said provisions have reference to contracts made by the regular officers of the municipal government and not to those made by a separate department possessing independent corporate powers. The right of the city to supply its inhabitants with water is statutory, and a city of the third class cannot establish a water plant where there is a private corporation already furnishing a sufficient supply of water: ” White v. Meadville, 177 Pa. 643.
    The water commissioners are appointed under the act of 1867, and not elected under the act of 1868, and hence the provision in the latter act above quoted that commissioners elected thereunder should receive nothing but actual expenses, does not apply. It would seem that when the act of 1868 was introduced it contained provisions for the election of water commissioners, which were stricken out before the act passed, and there is no provision in the act as to the election of water commissioners, so the clause as to compensation is inoperative. The lake water must be better than that in the bay, for the water in the bay is only lake water to which has been added all the sewerage and other contaminations from the city.
    The lake is a large body of water; it contains about 10,000 times as much water as the bay. It is over 1,600 times as large in area and at least six times as deep. Besides, there is a slow current in the lake, the water is gradually moving eastward, and a fresh supply is constantly being received from the great upper lakes. Some of this water comes in through the channel and helps to freshen the waters of the bay.
    The said act of 1867 was carefully drawn, and well protects the interests of the public. Each commissioner has to give a bond of $10,000. All the money of the department is deposited weekly in the city treasury. Such money can be used only to pay the debts of the waterworks, and can only be drawn out for that purpose, on an order signed by at least two of the commissioners and countersigned by the secretary of the board. The commissioners are required to make monthly reports to councils and a detailed annual report, and all water rates must be approved by the city councils before they go into effect. And all contract work must be advertised and let to the lowest responsible and capable bidder.

      May 14, 1906 :
    Under that act the waterworks were constructed and have been managed for nearly forty years, and have become a large and valuable property,! the title to which is vested in the commissioners of waterworks in the city of Erie, who hold the same in their corporate capacity as a public trust for the benefit of the city and its inhabitants. It bears no resemblance to a private corporation owned by stockholders. The people of Erie are the real owners of the waterworks. The act of 1867 was enacted as it is because the people then so desired it. If the people now wish to change the system the legislature can do it.
    The court entered a decree dismissing the bill.

      Error assigned was the decree of the court.

      Charles P. Eewes, for appellant.

      J. M. Sherwin and S. A. Davenport, for appellee.
   Pee Curiam,

We find no error in the decree dismissing the appellant’s bill. It is affirmed with costs.


author: Per Curiam:,

text:
    Leidigh v. Philadelphia, Harrisburg & Pittsburg Railroad Company, Appellant.

      Railroads — Eminent domain — Widening road — Width of right of way.

    On a bill in equity to restrain a railroad company from appropriating land for tbe widening of its road without having secured to tbe plaintiff compensation therefor, a decree continuing a preliminary injunction is properly entered where the court finds as a fact that the original entry on the land thirty years before was without permission or authority, and as there were no monuments on the land to indicate an appropriation of the full width of sixty feet, authorized by the defendant’s charter, no right had been acquired by occupation except as to the land actually used.
    Argued April 23, 1906.
    Appeal, No. 270, Jan. T., 1905, by defendant, from decree of C. P. Cumberland Co., June T., 1905, No. 3, continuing preliminary injunction in case of Harry M. Leidigh, Executor of Mahala C. Leidigh, deceased, v. Philadelphia, Harrisburg & Pittsburg Railroad Company.
    Before Fell, Bbown, Mestbezat, Potted and Elkin, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Sadleb, P. J., filed an opinion in which he found, inter alia, as follows:
    The defendant’s railway was constructed in the year 1872 or 1873 and has been continuously operated from that time, or soon thereafter, to the present day; abutments were constructed where the railway crosses the creek and a bridge erected thereon. The land, heretofore actually occupied by the railroad, is twenty-six feet in width. The lands of the plaintiff in contention lie along the creek or dam, and are not fenced. There are no monuments, marks or fences to indicate how much land had been appropriated by the railway company, except as appears from its bridge, roadway and tracks.
    It is not pretended that any compensation was, or has been paid to John Beltzhoover, or secured to be paid to him by the Miramar Iron Company or its successors. We are satisfied that the railway company entered upon and occupied the twenty-six feet in width, under the mistaken belief that it was under a grant from the owner, but that in fact it has been, and is a mere intruder. We are of the opinion that what rights the defendant has on the land of the plaintiff, if any, are limited to the twenty-six feet, to which it has confined its occupation for more than thirty years, and that its attempt to appropriate an additional area or width at the present time, without compensation to the owner, or giving security to pay any damages, which may be suffered by the plaintiff, in consequence of such appropriation, is unlawful.

      Error assigned was decree continuing preliminary injunction.

      Conrad Hambleton, with him John W. Wetzel, for appellant.

      U. M. Leidigh, F. E. Beltzhoover and S. B. Sadler, for appellee, were not heard.

      May 14, 1906 :
   Per Curiam:,

This appeal is from an order continuing a preliminary injunction restraining the defendant from appropriating land for the widening of its road without having secured to the plaintiff compensation therefor. The order is based on the finding that the original entry on the land thirty years before was without permission or authority, and there being no monuments on the land to indicate an appropriation of the full width of sixty feet, authorized by the defendant’s charter, no right had been acquired by occupation except as to the land actually used. The correctness of this finding and the other questions involved may be considered after final decree. Following the established practice of this court, we will not consider them on this appeal.

The order is affirmed at the cost of the appellant.


author: Peb Cubiam,

text:
    Lehman, Appellant, v. Lehman.

      Partition — Appeals—Statute of limitations — Act of April 22, 1856, P. L. 532 — Trusts and trustees.

    Where in partition proceedings no question is raised either in the evidence, the master’s report, the exceptions thereto, or the opinion of the court below as to whether certain of the parties were barred by the act of April 22, 1856, such question cannot be raised in the appellate court.

      Insurance — Life insurance — Beneficiaries—Children.
    A widower with six children married a widow with one child and had by her two children. After his marriage he took out a policy of insurance payable to “his wife, in trust for herself and their children.” There was nothing in the circumstances under which the policy was taken, or in the subsequent conduct of the insured which tended to show that the insured intended to exclude his children by his first wife. Held, that the children by the first wife were entitled to share in the proceeds of the policy.

      Will — Construction—Disinheriting hei — Insurance.
    In a doubtful case the courts favor that construction of a will which, consistently with the words of the instrument, will result in a distribution in conformity to the general rules of inheritance, rather than one which will disinherit an heir at law.
    A policy-of life insurance, although not a testament, is, like the provisions of a will, to be liberally construed in favor of the ones who may naturally be .presumed to have been the special objects of bounty.

      Argued April 25, 1906.
    Appeal, No. 340, Jan. T., 1905, by plaintiff, from judgment of Superior Court, March T., 1905, No. 2, affirming decree of C. P. Cumberland Co., Oct. T., 1902, No. 1, on bill in equity in case of Charles L. Lehman v. David P. Lehman.
    Before Fell, Bit own, Mestbezat, Pot-tee and Elkin, JJ.
    Affirmed.
    Appeal from Superior Court.
    See 29 Pa. Superior Ct. 60.
    Rice, P. J., filed the following opinion:
    A suit was instituted in the court of common pleas sitting in equity for the partition of certain real estate, the legal title to which at the time of her death stood in the name of Elizabeth A. Lehman, the widow of David P. Lehman. The proceedings resulted in a sale of the property, and a report by the master awarding the proceeds to the appellant and his brother, they being her children by David P. Lehman, deceased. Exceptions to his conclusions of law were sustained and the re-' port referred back to him with direction to make distribution in accordance with the opinion of the court, which was that each of the appellees, they being children of David P. Lehman by a former marriage — was entitled to share equally with the appellant. Exceptions were filed by the appellant to the subsequent decree confirming the report made by the master pursuant to the foregoing direction, and after these were dismissed this appeal was taken.
    It appears from the master’s report that David P. Lehman by his first marriage had six children ; that after the death of his first wife he married Elizabeth Moore, the decedent, and had by her two children, who were the plaintiff and defendant in the partition suit; that at the time of this marriage Elizabeth Moore was a widow and had one child by her former husband; and that all of these three sets of children were living when the distribution was made. After his second marriage David P. Lehman took a policy of insurance upon his life for f 5,000 in which the company agreed as follows : “ Said company promises to pay the sum insured to Elizabeth A. Lehman, his wife, in trust for herself and their' children in equal shares, their guardian, executors, administrators or assigns, within §ixty days after due notice and proof of the death of the said David P. Lehman.” Upon his death the widow received this sum with interest, after making proof of death in which she stated : “Said policy having terminated by his death on September 26, 1890, is payable to me in trust for myself and our children in equal shares.” We mention the fact but, in view of the foregoing, we do not regard it as material that in the receipts she gave the company nothing was said as to the trust. She received the money in October, 1890, and about a month later purchased the house and lot in question and occupied them as a residence until her death in September, 1902. The price paid was $1,500, and the master says that: “ It was conceded by all parties before the master that this money came from the proceeds of the insurance policy.” _ There is no express evidence as to what she did with the balance of the insurance money. It was stated at bar that she left personal property to the amount of $2,642.55 as shown by the inventory and appraisement filed by her administrator, but whether or not this was made up wholly or in part of the insurance money is a matter concerning which the record before us is silent. The master reported no such finding, and no evidence to support a finding that any portion of the insurance money was paid to the other beneficiaries.
    Appellant’s counsel claims that the questions involved in this appeal are: First, does the beneficiary clause in the policy of Lehman include only the children of the second wife or does it include the children of both wives; second, is the limitation prescribed by the act of April 22, 1856, a bar to recovery by the children of Lehman by his first wife; third, should the fund be distributed to Lehman’s children by both wives. But the appellee’s counsel insist that the first was the only question ever raised or discussed in all the proceedings before the master and the court, and that the objection that the right to enforce the trust was barred by the sixth section of the act of 1856 was not raised by exception or otherwise. An examination of the proceedings, including the master’s first report, the exceptions thereto filed by the appellees, the opinion of the court sustaining the exceptions and directing how distribution should be made, and the exceptions filed by the appellant to the decrees confirming the master’s second report confirm us in the conclusion that this position of the appellee’s counsel is well taken. The proceedings before the master were free from dispute as to the facts, and it is apparent that they brought to his attention only those facts which they then regarded as material in the determination of the single question of law upon which they conceived the case turned. No testimony was taken, but his findings of fact were based on their concessions made at the hearing, and none of them was excepted to or questioned in the court below, so far as this record shows, and none of them was changed in his final report. The master stated in his discussion of the case that the appellees’ claim was, that the decedent received the insurance money in trust for all the children of David P. Lehman, and as the money was used by her in the purchase of the property, they were entitled to share equally with the children of Elizabeth in the proceeds of sale, that, on the other hand, the appellant and his brothers, the two children by the second wife, contended that the trust was limited to them. After thus setting forth the respective contentions of the parties, which as we have seen included no reference to the act of 1856 or any other act of limitation, and stating that the child Elizabeth by her first husband made no claim to any share, the master said: “ Upon the construction of the clause in the policy depends the determination in this case.” In disposing of the exceptions to his report, none of which disputed the correctness of the master’s presentation of the opposing contentions of the parties and the question of law growing out of them, the court likewise treated this as the question upon which the case turned, and this conclusion was not criticised, especially in the exceptions subsequently filed by the appellant. So far as the record shows, no suggestion was made by the court, the counsel, or the master that the right to enforce the trust was barred by the sixth section of the act of 1856, or that that question was involved in the case. Under the special circumstances of the case this question, if it was to be raised at all, should have been raised at a time when possibly it might have been met by evidence, and should not have been held in reserve until the case came into the appellate court. We are not unmindful of the decisions which hold that the act of 1856 is a statute of repose and need not be specially pleaded. But these decisions do not militate against the conclusion that as the record shows clearly that the distribution proceedings were conducted before the master and the court upon the theory, acquiesced in by all the parties, that the proper determination of the case depended upon the construction to be given to the beneficiary clause, the case ought to be disposed of here upon the same theory. See Ricketts’s Appeal, 9 Sadler, 247 ; Henry v. Zurflieh, 203 Pa. 440; Safe Deposit Bank v. Schuylkill County, 190 Pa. 188; Taylor v. Sattler, 6 Pa. Superior Ct. 229; Troubat Ave., 10 Pa. Superior Ct. 27 ; Growen v. Glaser, 2 Sadler, 250.
    There is nothing in the context to aid the appellant’s construction of the words “ their children ” in the beneficiary clause of the insurance policy, Nor are any circumstances shown which it may be inferred would have been likely to influence the insured to prefer one set of his children over the other. The suggestion that naturally he would be concerned especially for the children of his second wife because they were younger would not be without force if there were any evidence that at the time he took the policy the children by his first wife were not dependent members of his household or that they were adults or that all of them had reached an age when it might be presumed they were self-supporting or soon would become so. But the record contains no evidence of that kind and there is no ground for surmise even, that there was such a difference between the ages of his youngest children by his first wife and the age of his oldest child by his second wife as would naturally incline him to discriminate in favor of the latter. There is also a total absence of evidence that at the time the policy was issued the children of his first wife owned any property in their own right or that the insured had made or had the ability to make any other provision for them; and it is not asserted that he left a will providing for such disposition of his property as would equalize them with his other children if the appellant’s construction of the beneficiary clause be adopted. In short, there is nothing in the context, or in the circumstances under which the policy was taken, or in the subsequent conduct of the insured to aid the appellant’s contention that the insured intended to exclude his children by his first wife. It must be sustained, if at all, because that is the absolute meaning of the words used in the beneficiary clause. But the words “ their children ” may be used in one connection to designate the children having a common parentage on both sides and in another connection to designate the children of the husband and the children of the wife spoken of. Neither law nor common usage has affixed such unvarying meaning to the word “ their ” as to prevent its appropriate use for the latter purpose. In determining the sense in which they were used in a contract or in a will regard must be had to the subject-matter. Hence in a case cited and analyzed in the opinion filed by the learned judge below, where it appeared that a testator devised land to his son Jacob and Eliza his wife, and directed that it should be “ equally divided among their children at their death,” it was held that the children of Jacob by a former wife were included : Luce v. Harris, 79 Pa. 432. Although Justice Paxson alluded to the fact that the second wife brought them up as her own, yet it is quite apparent from the opinion as a whole that the decision was put on the ground that there was nothing on the face of the will to indicate any intention on the part of the testator to disinherit the children of his son Jacob by his first wife, nor anything to show that they were not proper objects of the testator’s bounty. “ When the testator provides that ‘ the land given to Jacob and wife shall be equally divided among their children at their death,’ he evidently intended to include the children of Jacob by his first wife, who were also the stepchildren of his second wife. In order to confine the generality of the words ‘ their children,’ to those born of the second marriage and thus disinherit those born of the first marriage, such intention must clearly appear from the face of the will. It must be manifest by its express terms, or by necessary implication. Neither exists in this case.” We agree with the learned judge below that this case goes far toward ruling the question for decision here, but even if it does not conclusively rule the case at bar it is authority and a very strong one for the proposition that the words “ their children ” have no such fixed and unvarying meaning as to compel the conclusion that the insured intended to exclude his children by his first wife. Stigler’s Executrix v. Stigler, 77 Va. 163, which involved the construction of a life insurance policy “ for the benefit of his wife and their children ” may be cited for the same purpose. So in Koehler v. Life Insurance Co., 66 Iowa, 326 (23 N. W. Repr. 687), where the policy provided that the proceeds should “ be paid to his wife, Malien Koehler and children ” the construction was adopted which would include the children of the insured by a former marriage. To the same effect is McDermott v. Life Insurance Co., 24 Mo. App. 73. Dorin v. Dorin, L. R., 7 H. L. 568, is cited by the appellant’s counsel as ruling that a gift by will to “ my wife and her children ” included only “ her children to the testator.” That is quite different from restricting the generality of the language used by a donor in a provision for his children so as to exclude part of them. So in Holsen v. Rockhouse, 83 Ky. 233, it was held that a power of appointment “ among our children ” given by will to the testator’s wife did not include her children by a former husband, but the reasoning of the decision renders it by no means certain that the court would have construed the clause so as to exclude the testator’s children by a former wife. Evans v. Opperman, 76 Texas, 293 (13 S. W. Repr. 312), gives more support to the appellant’s position than any of the other cases cited by his counsel, but that also is easily distinguishable from the case at bar. In a doubtful case the courts favor that construction of a will which, consistently with the words of the instrument, will result in a distribution in conformity to the general rules of inheritance, rather than one which will disinherit an heir at law: Hauer’s Est., 16 Pa. Superior Ct. 257. In such case, it has been said, “ the heir has the advantage of those claiming equality among children: ” Malone v. Dobbins, 23 Pa. 296. A policy of life insurance, although not a testament, is, like the provisions of a will, to be liberally construed in favor of the ones who may naturally be presumed to have been the special objects of bounty: Mc-Nally v. Metropolitan Life Insurance Co., 16 Pa. Superior Ct. Ill, and cases there cited. See also Scull v. .¿Etna Life Insurance Co., 60 L. R. A. 615. Here the insured, in making a provision to take effect upon his death for those dependent upon him, used words, which without violence to the sense in which they are commonly used, may be construed to include all those coming equally within the reason of the provision, and there is nothing in the context or in the extraneous circumstances from which the intention to exclude any may be safely inferred. He must have known that his words were susceptible of this construction, and therefore it may be safely assumed that if he had intended to restrict the benefits of his provision to his children by his second wife he would have been careful not to choose words that were easily susceptible of a broader construction. It may be said that unless the generality of the word “ their ” be confined by construction, the child of the widow by her former husband would be let in on the same plane with the donor’s own children. We need not discuss that question because she has disavowed the right to claim; we remark, however, that there is much force in the suggestion of the appellee’s counsel, that it is a more natural construction to include the second wife’s child by her first husband than to exclude the husband’s children by his first wife.
    May 14, 1906:
    Upon a full consideration of the case from every standpoint we are of opinion that the court was clearly right in holding that the latter class of children were not intended by the insured to be excluded from the benefits of the provision that he made for those dependent upon him.
    Decree affirmed and appeal dismissed at the costs of the appellant.

      Error assigned was the decree of the Superior Court.
    6r. Wilson Swartz, for appellant.

      E. E. Beltzhoover, with him H. M. Leidigh, for appellee.
   Peb Cubiam,

The decree is affirmed on the opinion of the learned President of the Superior Court.


text:
    Megahey, Appellant, v. Farmers’ and Mechanics’ Savings Fund and Loan Association.

      Bes adjudicata — Action at law — Bill in equity — Cause of action.

    Jurisdiction will not be taken in equity to retry on the same facts a pause of action that has been decided in proceedings at law.

      Argued April 25, 1906.
    May 14, 1906 :
    Appeal, No. 9, Jan. T., 1906, by plaintiffs, from decree of C. P. Crawford Co., May T., 1905, No. 2, sustaining demurrer to bill in equity in case of Jane Megahey v. The Farmers’ and Mechanics’ Savings Fund and Loan Association and Myron Houghtaling.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Thomas, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was the decree of the court sustaining the demurrer.

      Manley O. Brown, with him H. J. Humes § Son, for appellant.

      O. L. Stevenson, with him Thomas J. Prather, for appellee.
   Per Curiam,

The assignments of error are to an order sustaining a demurrer by one of the defendants, The Farmers’ and Mechanics’ Savings Fund and Loan Association, to a bill to enjoin the collection of a mortgage held by it. The demurrer is not to defects appearing on the face of the bill, and its allegations are dehors the record. No objection has, however, at any stage of the proceeding been made to this, and the ground of defense raised by the demurrer was considered in the common pleas as if raised by answer. It is alleged in the demurrer that the association has obtained judgment in a proceeding at law on the bond accompanying the mortgage and that in that proceeding the same facts were set up as a defense that are set up by the bill. The jurisdiction at law was broad enough to cover any ground of defense and the adjudication is final and conclusive. To take jurisdiction in equity would be to retry the same case on the same grounds.

The order of the court is affirmed.


author: Mr. Justice Mestbezat,

text:
    Scott’s Estate.

      Trusts and trustees — Order to pay over money — Account.
    It is error for the orphans’ court to make an order on a testamentary trustee to pay over moneys to legatees under the will where it appears that the trustee has filed no account, has not been requested to file an account, and assorts that it is uncertain whether the trust money consists of income or principal, and that it is necessary that this question should be determined before a proper distribution can be made.
    Argued April 26, 1906.
    Appeal, No. 68, Jan. T., 1906, by the Union Trust Company, from decree of O. C. Erie Co., May T., 1905, No. 66, directing payment of money in Estate of William L. Scott, deceased.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Petition for order to pay over money.
    Walling, P. J., filed the following opinion:
    William L. Scott, a resident of this city, died testate on September 19, 1891. By his last will, the residue of his estate is given to the Union Trust Company of New York in trust to pay the income to certain legatees, members of Mr. Scott’s family, and to reserve the principal for final distribution. At the time of his death, Mr. Scott was a member of a partnership engaged in the coal business under the firm name of William L. Scott and Company, of which firm he was the owner of twenty-six thirty-fifths.
    After his death said firm in 1892 became chartered as a corporation under the name of the W. L. Scott Company, with a capital stock of $1,000,000. The assets of the firm constituted the property of the corporation. Such assets had a nominal net value of $1,194,194.45, but their actual net value was about $955,000; however, such assets went into the corporation at $1,000,000. The members of the firm became stockholders of the corporation, but a part of the interest of the Scott estate was sold to other stockholders so that said estate owned practically fifty-five per cent of the stock of the corporation. Fifty-four hundred and ninety-nine of the 10,000 shares of the stock of the corporation, were owned by said estate. The business of the corporation was successful, but in 1904 the stockholders unanimously decided to quit business and go into liquidation. The hard coal branch of the business was closed out December 31, 1904, and the soft coal business of the corporation terminated April 30, 1905. The said W. L. Scott Company on October 28,1904, declared a distribution amounting to $397,772.94 among the stockholders as payment upon capital stock. And on January 30, 1905, declared a further distribution of $602,227.06, as the balance of the $1,000,000 of capital stock, which distributions were duly made to the stockholders, of which the said Union Trust Company, as trustee under the will of Wm. L. Scott, deceased, received its proper share.
    The W. L. Scott Company owned a three-fifths interest in a corporation, engaged in the coal business known as the Union Coal Company. The property, etc., of the Union Coal Company was sold in November, 1903, to the Susquehanna Coal Company for the sum of $700,000,- and three-fifths thereof, to-wit: the sum of $420,000, became payable to the W. L. Scott Company. Three hundred and ninety-seven thousand seven hundred and seventy-two and 94-100 dollars of said $420,000, was, by arrangement, paid by certificates of the Farmers’ Loan & Trust Company of New York, and said certificates were delivered to the stockholders of the W. L. Scott Company in part payment of the capital stock of which certificates the Union Trust Company, as trustee, received its due proportion. Said certificates are interest-bearing and nothing is shown to indicate that they will not ultimately be paid in full.
    After payment of said capital stock, the W. L. Scott Company had a large surplus amounting to about $1,600,000, of which over one-half was cash on deposit. On April 12, 1905, the W. L. Scott Company declared a dividend of five per cent on the amount of its original capital stock, as surplus earnings. This dividend, amounting to $50,000, was paid from said large surplus ; and said Union Trust Company, trustee, receiving as its share of said dividend the sum of $24,495. The legatees under Mr. Scott’s will, who are entitled to the income of said trust .estate, aver that said last named sum is income and should be distributed to them as such. The Union Trust Company being in doubt, declines to so treat it. The facts appear more at large in the requests of the respective parties.
    In our opinion, this court has jurisdiction. If not, what court has ? In general, the proper place to settle an estate is the domicile of the testator. Did Mr. Scott oust the jurisdiction of this court by appointing a nonresident trustee ?
    Personal property follows the domicile of its owner and it would seem reasonable that a foreign corporation, or nonresident, who accepts a trust created by the will of a resident of Pennsylvania thereby becomes subject to the jurisdiction of the proper courts of this state : Musselman’s Appeal, 101 Pa. 165.
    As the receipt of the $27,495 is admitted, no reason appears why the Union Trust Company should file an account before making a distribution thereof; it would be an unnecessary expense to require an account each time before making a distribution of an item or items of income.
    In our opinion, the $50,000 dividend is income and should be distributed as such, for if it be principal, then the whole surplus of $1,600,000 is principal, and the principal of Mr. Scott’s estate, that was invested in the W. L. Scott Company has increased over 150 per cent.
    In our opinion such surplus under the facts of this case, should be distributed as income. Nor should this large surplus be tied up on a theory that a loss may possibly result on the certificates received from the sale of the Union Coal Company property, and which have been distributed in payment of a part of the capital stock of the W. L. Scott Company. The capital of the trust estate will certainly not be impaired by the distribution of the $27,495; and no necessity appears for tying up the large surplus until all matters connected with the W. L. Scott Company are liquidated.
    Mr. Scott manifestly intended the income of the trust estate for the benefit of the members of his family, and it should be so used.
    And now, January 22, 1906, the prayer of the petitioners in above-stated case is granted and counsel is requested to prepare the proper decree.

      Error assigned was the order of the court.

      May 14, 1906:

      J. Boss Thompson, of J. Boss Thompson Son, for appellants.
    Diligent search has failed to discover any case in Pennsylvania in which the orphans’ court has granted relief even approximating the kind asked for by petitioners, except upon an accounting.
    The proper way to raise such a question is to cite the trustee to account, when the trustee may either dispute the petitioner’s right to an account or he may file an account and resist the petitioner’s claim to any share of the fund in court: Morton’s Estate, 201 Pa. 269; Jacoby’s Estate, 201 Pa. 442.

      Frank Gunnison, with him T. A. Lamb, for appellees.
    We are not, without ample statutory authority, supported by judicial decision, for the contention that the orphans’ court has the jurisdiction claimed in this case, and which was sustained by the court below: Brown’s App., 12 Pa. 333; Wapples’s App., 74 Pa. 100; Hart’s Est., 12 Pa. Dist. Rep. 47; Van Dyke’s App., 4 W. N. C. 283; Van Dyke’s Estate, 11 Phila. 15; Musselman’s App., 101 Pa. 165; Freeman’s App., 68 Pa. 151; Conrow’s Estate, 16 Phila. 284; Moore v. Fields, 42 Pa. 467 ; Parsons v. Lyman, 20 N. Y. 103.
   Opinion by

Mr. Justice Mestbezat,

The learned court below erred in entertaining this petition and in making a summary order that the testamentary trustee pay to the petitioners the money alleged to be in its hands. The petitioners are legatees under the will of the late William L. Scott, deceased, and claim that the Union Trust Company of New York, the trustee under said will, has a fund which as trustee it should pay to them in the proportions directed by the will. The court made an order for the payment of the money as prayed for in the petition. No account has been filed bythe trustee and the petitioners have made no request that an account should be filed. In fact, their position is that none is necessary. But the numerous substantial questions raised on this appeal by the trustee make it apparent that the usual and proper course in such cases should have been followed in this case by the trustee filing an account, and the controverted questions raised by exceptions. The trustee concedes a sum of money to be in its hands, but denies that it has sufficient information to enable it to determine whether or not the money is income to which the petitioners are entitled, or principal which should be held by it for the remainder-men. The petitioners, as life tenants are entitled to the income, but not to the principal. It is necessary, in order to protect the trustee, that the question of whether the fund is principal or income should be determined by the court, and to make the adjudication effective for that purpose, all parties, the remainder-men as well as those having life interests, must have notice. This makes it necessary that an account be filed by the trustee and that the statutory notice be given, so that all parties interested in the fund for distribution may be heard and their rights be adjudicated. On the filing of an account, it can then be determined whether the fund is subject to the payment of debts, fees to court officers, or commissions to the trustee ; and also, if such payments are required, the character of the residue, whether it is principal or income and to whom and in what proportion it is payable.

From the suggestions of the counsel for the trustee, we presume that it will voluntarily file an account in order that the rights of the parties to the fund in its hands may be speedily adjudicated. If, however, the trustee declines to file an account, it may then be cited to do so in the regular and orderly way when its rights as well as those of all interested parties may be conclusively determined.

The decree of the court below is reversed and the petition is dismissed at the costs of the petitioners.


text:
    Noggle, Appellant, v. Carlisle & Mt. Holly Railway Company.

      Negligence — Street railways — Fireworks exhibition — Amusement park.

    Where a street railway company, owning an amusement park, properly polices the park, provides a suitable place for the exhibition of fireworks and places it in charge of a competent independent contractor, it is not liable for injuries to a person caused by the negligence of a volunteer assisting an employee of the independent contractor.

      Argued April 26, 1906.
    May 14, 1906:
    Appeal, No. 135, Jan. T., 1906, by plaintiff, from judgment of C. P. Cumberland Co., Feb. T., 1905, No. 123, on verdict for defendant in case of Wesley Noggle and Harvey Noggle v. Carlisle & Mt. Holly Railway Company.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Sadler, P. J.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    The court directed a verdict for defendant. Plaintiff appealed.

      Error assigned was the order of the court.

      E. M. Biddle, Jr., with him <7. O. Bashore, for appellant.

      F. E. Beltzhoover and 8. B. Sadler, for appellee.
   Per Curiam,

The defendant company contracted with a dealer for an exhibition of fireworks in a park on the line of its railway. By the terms of its agreement the dealer was to select the fireworks from his stock, to have them exploded, and to make the best display that could be made for the price agreed upon. The company procured extra policemen for the occasion to preserve order in the park, but it did not reserve nor exercise any supervision or control of the exhibition, which was placed by the dealer in the exclusive charge of a competent employee. During the course of the exhibition a piece known as a “ flowerpot” failed to explode and tire father of the man in.charge, who was assisting him merely as a volunteer, handed it to a boy twelve years old and told him to take it away and have a good time with it. He took it some distance from the crowd, touched a lighted match to it and was injured by its explosion. A verdict was directed for the defendant.

The company properly policed the park, provided a suitable place for the exhibition, and placed it in the charge of a competent person. The negligence that caused the injury was that of a volunteer assisting the employee of an independent contractor. For this the company was not answerable.

The judgment is affirmed.