text:
    Hays v. Colonial Trust Company, Appellant.

      Contract — Partnership—Sharing in profits — Equity.
    On a bill in equity it appeared that the plaintiff and defendant made an agreement in writing by which plaintiff was to take up options on certain stock at $10.00 a share. He was to be paid $100 a month, and in case he sold the stock at a price satisfactory to defendant he was to have twenty-five per cent of the profits. If, however, defendant determined to take up said options himself then defendant was to have a salary for his time, his investment was to be repaid with interest and then plaintiff was to have twenty-five per cent of the profits on the sale of the stock. Defendant was to have “full control” of the stock. Held, that the parties to the agreement were not partners, and that defendant although bound to good faith towards the plaintiff, was not bound to consult him as to the sale of the stock.
    Argued Oct. 22, 1906.
    Appeal, No. 17, Oct. T., 1906, by defendant, from decree of O. P. No. 2, Allegheny Co., Oct. T., 1902, No. 314, on bill in equity in case of Milton D. Hays v. Tlie Colonial Trust Company, Administrator of the Estate of W. O. Jutte, deceased.
    Before Mitchell, O. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, J J.
    Reversed.
    Bill in equity for an account.
    Shafer, J., found the facts to be as follows:
    On September 15, 1900, the plaintiff and defendant entered into an agreement in writing, by which it was provided that the plaintiff should take up options on the capital stock of the Pittsburg & Castle Shannon Railroad at $10.00 per share, and that if the defendant should determine to take up these options, the plaintiff was to have twonty-five pen cent of the profits of the sale of the stock of the road, after the defendant should receive the full amount of his money invested, with six per cent interest, “and a salary also for his time given to same,” and that the defendant should have full control of the stock of the road. The plaintiff was also to have $100 per month and that the defendant might terminate the agreement at any time by giving ten days’ notice in writing, which was done in February, 1901. The agreement contains other provisions which are not now in question.
    The plaintiff had by this time procured from the owners of the stock options at $10.00 a share, and procured such options .on 5,225 shares of the stock, and delivered them to the defendant, who exercised the rights therein granted and purchased the stock, and the shares were transferred to the defendant and other persons at his direction on the books of the company.
    In March, 1901, the defendant pledged to the German National Bank as collateral security for a loan of $40,000, about 4,900 or 5,000 shares of this stock, and these shares were transferred partly to J. W. Friend and partly to F. N. Hoffstott, who were each officers of the national bank which made the loan.
    A supplemental agreement was made between the parties in August, 1900, which recites that the defendant has purchased a majority of the stock of the railroad company, and is about to dispose' of the same at a profit to John S. Scully of Pitts-burg, and agrees that the profits of the sale so to be made shall be reinvested in a proposed railway company.
    In August, 1901, the defendant being then the owner of the majority of the stock, purchased from Mr. Bailey the greater part of the remainder of the stock for $25.00 per share, and the stock was delivered to him in November, 1901.
    In December, 1901, 2,446 shares of the stock were transferred on tlie books of the company to Mr. Hoffstott and 2,430 to Mr. Friend, these transfers being made on the books of the company for the purpose of electing directors at the next meeting of the railway company. In January of 1902, the bank called upon Jutte to pay the loan for which the stock was pledged, and he replied that he could not do so, and that he was willing to sell the stock -at $12.00 per share, and this was done and the loan was cancelled by Mr. Friend and a check for $20,000, being the difference between the price of 5,000 shares at $12.00 per share and the note, was sent to Mr. Jutte.
    'The testimony as to this sale was only that of Mr. J utte, examined by the plaintiff as for cross-examination, and that of Mr. Friend, who was claimed to have taken part in the collusive sale, and other parties connected with the defendant. The conduct of Jutte in his negotiations with Mr. T. A. Noble, a proposition made by him shortly before the actual sale to Mr. Friend and some other matters, which appear in the evidence, together with the very contradictory and unsatisfactory accountgiven by these parties of their transactions, undoubtedly throw grave suspicion upon the bona fides of the sale by Jutte. There is not enough, however, in the evidence to justify the court in finding that Jutte received, or was to receive, more than $12.00 per share for the stock, or that he was guilty of positive bad faith in selling at that price, and the exceptions relating to the bona fides of the sale are, therefore, dismissed.
    On exceptions Shafer, J., filed the following opinion :
    We have carefully considered the exceptions of the plaintiff and the findings of fact upon which it was founded filed herein. The exceptions are numerous and cover almost every item of the account. The first exception is to the charge of proceeds of sale of 5,000 shares at $12.00 a share, the plaintiff’s claim' that the accountant should be charged with this stock at a much higher price. The other exceptions are to two items of credit claim, and are all dismissed, the items of credit being sufficiently discussed in the opinion heretofore filed.
    The finding in regard to the charge for stock sold to which plaintiff excepts is, that there is not sufficient evidence to justify the court in finding that Jutte received or was to receive more than $12.00 per share for the stock, or that he was guilty of positive bad faith in selling at that price; and the charge against Jutte of the stock sold at the rate of $12.00 per share only was thus put solely upon the ground that it did not positively appear that he in fact received a greater price than that for the stock. As suggested in the opinion filed the evidence in regard to the sale of the stock, all of which came from Jutte and the purchaser from him, was highly unsatisfactory. In the first place the defendant stated the account of the number of shares sold by him and the price, at which they were sold as if from his books, in a way which could, hardly be correct, but which he stuck to in his testimony until it became evident that it could not be correct, when his counsel asked leave to amend his account. The statement of the account thus made was such as to show that nothing at all was coming to the plaintiff. It further appeared that upon negotiation for sale of the same stock six months before, he insisted upon the stock being put in along with other property at the price of $12.00 a share, and the other property put in at a price higher than was asked for it by the seller, so as to cover the difference between $25.00 a share and $12.00 a share. He ■ afterwards bought other stock at $25.00 a share. When in the winter of 1902 the stock was actually sold for $12.00 a share to an officer of the bank who was practically in charge of the defendant’s affairs, the transaction has a very artificial appearance, being carried on by correspondence in -writing between the parties practically in the same office. Considering these circumstances and the numerous contradictions and inconsistencies in the testimony of the parties to the transaction, we cannot help seriously doubting its good faith and suspect very strongly that the sale was merely a pretended one for the purpose of depriving the plaintiff of his share of the proceeds of the purchase of the stock. We would not, however, feel justified in finding the fact to be so.
    There is, however, another view of the case which we believe was not heretofore sufficiently considered. The defendant was as to this stock a partner with the plaintiff. It is true that the contract between them provided that the defendant should have “ full control of the stock of said road,” but that does not mean that he should sell when and as he pleased without consultation with the plaintiff or notice to him, and perhaps does not refer to the sale of it at all, nor does it mean that he should pledge it for his own individual debt. The duty ot the defendant under the contract was to sell the stock, if he sold it all, in the usual way, upon the open market, and to procure for it the best price that could be had. What the defendant did, was to pledge it for his own debt, and thus to put the control of it more or less out of his own hands, and then without notice to the plaintiff, who was entitled to receive one-fourth of the profits, without notice to the public, and without notice to or consultation with any of the several parties who had been negotiating for the stock from time to time and whose offers had been rejected, to sell it for less than one-half of what he had paid for similar stock not long before and less than one-half of what he had been offered for it not long before, to the officer in control of the bank which held it as collateral and in whose name one-half of it actually stood at the time upon the books of the company. And this sale was made of the whole of the 5,000 shares, although only two-thirds of the amount supposed to be received was required to pay the note for which it was pledged. It is true that no sales of the stock were made upon the open market by anyone before this transaction, but we have no hesitation in finding from the evidence that the stock was worth §25.00 a share at the time it was sold by the defendant at §12.00 a share. We think that the defendant having sold the stock under the circumstances above stated, is not in a position to complain that he is charged with the last price at which any of the stock was actually sold.
    The exceptions to the findings as to the charge for the stock are, therefore, sustained to the extent above stated, and the account stated in opinion heretofore filed is to be modified by charging the defendant with 5,000 shares of stock at §25.00 per share, instead of §12.00 per share. This adds 165,000 to the debit side of the account and increases the same to be divided between the parties by that amount, making the same §69,206.46, instead of §4,206.46. Of this amount seventy-five per cent belongs to the defendant and twenty-five per cent, or §17,301.61, to the plaintiff, from which is to be deducted $911.86, leaving abalance in favor of the plaintiff of $16,389.75.
    Let a decree be drawn that there is due from the defendant to the plaintiff the sum of §16,389.75 upon the account between them, which amount the defendant is ordered and directed to pay the plaintiff, and that the costs be paid, one-fourth by the plaintiff and three-fourths by the defendant.

      Error assigned was the decree of the court.

      Samuel McClay, of Reed, Smith, Shorn & Beal, for appellant. —
    W. C. Jutte had the right under the contract of September 15, 1900, to sell to. J. W. Friend this stock at such price as to him might seem proper, provided he exercised this discretion in good faith, and without fraud.
    February 4, 1907:

      S. S. Robertson, for appellee.
    It is the duty, of partners to observe the utmost good faith toward each other in all their transactions, since in all the scope of the partnership business they stand in a fiduciary relation, the one to the other; and the same rules and tests are to be applied to the conduct of partners as are ordinarily applicable to that of trustees and agents: Bennett v. McMillin, 179 Pa. 146; Marsh’s App., 69 Pa. 30; Smith v. Loring, 2 Ohio, 440; Coursin’s App., 79 Pa. 220; Lefever v. Underwood, 41 Pa. 505; Stidger v. Reynolds, 10 Ohio, 351; Devall v. Burbridge, 4 W. & S. 305; Inglis v. Floyd, 33 Mo. App. 565; Pomeroy’s Eq., secs. 1070, 1088.
   Opinion by

Mr. Chief Justice Mitchell,

In September, 1900, plaintiff and Jutte, appellant’s decedent, made an agreement in writing by which plaintiff was to take up options on certain stock at $10.00 a share. He was to be paid $100 a month, and in case he sold the stock at a price satisfactory to Jutte he was to have twenty-five per cent of the profits. If, however, Jutte determined to take up said options himself then Jutte was to have a salary for his time, his investment was to be repaid with interest and then plaintiff was to have twenty-five per cent of the profits on the sale of the stock. Jutte was to have “ full control ” of the stock.

A subsequent agreement was made in August, 1901, relating to the investment of the profits in a proposed coal and railroad company, but not materially affecting the provisions of the first contract.

The learned judge below, though apparently after much doubt and hesitation, came to the opinion that the parties as to these transactions were partners and that Jutte was bound to consult or at least notify plaintiff, and “ to sell the stock if he sold it at all, in the usual way upon the open market.” We cannot however, concur in this construction of the agreement. It overlooks at least one attribute of partnership, the community of liability for losses. The case belongs rather to that class where compensation may be measured by a proportion of profits without making a partnership : Haines & Co.’s Estate, 176 Pa. 354.

Jutte was to be the owner of the stock throughout the transactions. The sales by plaintiff under the options he took were to be at a profit satisfactory to ” Jutte; no such provision as to the satisfaction of plaintiff was made as to sales by Jutte; the latter was “ to have full control of the stock; ” and he could terminate the agreement on ten days’ notice in writing.

It is clear that Jutte was the owner, the principal, and plaintiff only an agent to purchase, and within limits to sell. He was, however, an agent with an interest in the proceeds of the sales Avhich entitled him to an account and to the exhibition of good faith on the part of Jutte in getting the best price obtainable. For mistakes by Avhich he missed sales at higher prices than he could subsequently obtain, or other errors of judgment Jutte was not liable, but he Avas bound to good faith toAvards plaintiff. At the first adjudication the learned judge below stated the account on these principles and found a balance due of only $139.51. But on the second adjudication upon exceptions filed to the first, he raised the amount to $16,389.75. The difference arises from the different views of a sale of a large block of the stock at $12.00 a share. This sale was attacked as fraudulent and collusive with the purpose of defrauding plaintiff. On this the court said, Considering these circumstances and the numerous contradictions and inconsistencies in the testimony of the parties to the transaction, Ave cannot help seriously doubting its good faith and suspect very strongly that the sale was merely a pretended one for the purpose of depriving the plaintiff of his share of the proceeds of the purchase of the stock. We would not, however, feel justified in finding the fact to be so.” He did, however, find that as there Avas a partnership the sale by Jutte was such a failure of duty to plaintiff as his partner as to make him liable for the price that the stock was actually worth and had been sold for within a comparatively short time.

But, as already said, there was no partnership; Jutte had three times the amount at stake in the profits that plaintiff had, and he not only had the right as owner to determine when and upon what terms he would sell, but the agreement shows that plaintiff trusted Jutte’s judgment on that subject. The latter can only be held, liable for actual bad faith. This was the basis, moreover, on which plaintiff’s bill was filed. The learned judge below having in his opinions on both hearings explicitly refused to find actual fraud, the decree cannot be sustained.

Decree reversed, and decree on first hearing reinstated with leave to appellee to file exceptions de novo.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Commonwealth v. Beingo, Appellant.

      Criminal law — Evidence—Good character — Charge.
    In charging the jury in criminal cases the trial judge is under no obligation to use any particular or set form of words. All that the prisoner is entitled to, even on trial for murder, is that the jury shall be accurately instructed as to the law applicable to every material phase of the ease which the jury may, under the evidence, be authorized to consider. ■
    Good character is an affirmative and substantive fact to be considered on the whole question of guilt, including reasonable doubt.
    The substance of the law as to good character is that it is not a mere makeweight but positive and substantive evidence in itself and entitled as such to go to the jury as a fact in the prisoner’s favor. If the jury is so instructed the duty of the judge is correctly performed, and if counsel for the prisoner want instruction in some preferred form they should request it in the usual way.
    Argued Jan. 8, 1907.
    Appeal, No. 317, Jan. T., 1907, by defendant, from judgment of O. & T. Luzerne Co., Sept. T., 1906, No. 219, on verdict of guilty of murder in the second degree in the case of Commonwealth v. Joseph Beingo.'
    Before Mitchell, C. J., Fell, Brown, Mestbezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Indictment for murder. Before Wheaton, J.
    At the trial it appeared that on June 28, 1906, the prisoner shot and killed his father-in-law, Raphael Marsicano. The defendant claimed that the shooting was in self-defense.

      The court charged in part as follows:
    In addition to the various facts testified to, -which you will recall, and some of which I have narrated to you, the defendant has put upon the witness stand a number of people who have known him for many years, and they testify that from the speech of the people in communities in which he has lived, his reputation as a law-abiding, peaceable citizen before June 28, last, was good. Now, that is what is known as character testimony. Ordinarily it is offered where there is a denial on the part of the defendant that he has committed the crime with which he is charged, ordinarily it comes to the court when there is a general denial. [But it is none the less important, and none the less pertinent in a case of this kind where the defendant admits the killing, as bearing upon the question of whether the killing was, as the commonwealth contends, a deliberate, willful, premeditated, felonious killing, or whether, as the prisoner contends, it was done in self-defense.] [2] This kind of testimony is not to be made light of, it is not a mere makeweight thrown in to fill out a case, it is affirmative, substantive testimony to be considered by you fairly in connection with all the other evidence in the case, as bearing upon the question of whether the commonwealth has not established the guilt of the prisoner as he stands charged in the indictment, beyond a reasonable doubt.
    Yerdict of guilty of murder of the second degree.

      Errors assigned were (1) in failing to charge the jury that “ Evidence of good character, in itself, by the creation of a reasonable doubt may work the acquittal of the defendant;” (2) portion of charge as above, quoting it.

      Frank A. McCuigan, with him Jam.es P. Costello, for appellant.
    Evidence of good character, in itself, by the creation of a reasonable doubt, may work an acquittal: Heine v. Com., 91 Pa. 145; McLain v. Com., 99 Pa. 86; Hanney v. Com., 116 Pa. 322; Com. v. Cleary, 135 Pa. 64; Com. v. Eckerd, 174 Pa. 137; Com. v. Harmon, 199 Pa. 521; Com. v. Sayars, 21 Pa. Superior Ct. 75; Com. v. Miller, 31 Pa. Superior Ct. 309.

      Evan C. Jones, assistant district attorney, with him B. R. Jones, Jolm, M. Garman and James P. Gorman, for appellee.

      February 4, 1907:
   Per Curiam,

The first assignment of error complains that the judge did not charge the jury that “Evidence of good character, in itself, by the creation of a reasonable doubt may work the acquittal of the defendant.” But the trial judge is under no obligation to use any particular or set form of words. All that the prisoner is entitled to, even on trial for murder, is that the jury shall be accurately instructed as to the law applicable to every material phase of the case which the jury may under the evidence be authorized to consider. The substance of the law as to good character is that it is not a mere makeweight, but positive and substantive in itself and entitled as such to go to the jury as a fact in the prisoner’s favor. If the jury is so instructed the duty of the judge is correctly performed, and if counsel for the prisoner want instruction in some preferred form they should request it in the usual way. The judge’s attention being thus directly called to the subject he may adopt the form suggested, or modify his own expression or stand on the latter as it is. The question for this court will then be not whether any particular form would have been more satisfactory to either party to the issue, but whether the charge as given was substantially an accurate guide to the jury. That is the whole purpose of a charge in homicide as in other cases. The law of Pennsylvania as to the weight of good character is more favorable to the accused than the common law or the law of most other states, but it has not gone so far as to give it any special prominence or superiority to the other facts in evidence in the case.

The learned judge charged that evidence of character “ ordinarily comes to the court when there is a general denial. But it is none the less important, and none the less pertinent in a case of this kind where the defendant admits the killing, as bearing upon the question of whether the killing was, as the commonwealth contends, a deliberate, willful, premeditated, felonious killing, or whether, as the prisoner contends, it was done in self-defense. This kind of testimony is not to be made light of, it is not a mere makeweight thrown in to fill out a case, it is affirmative, substantive testimony to be considered by you fairly in connection with all the other evidence in the case, as bearing upon the question of whether the commonwealth has or has not established the guilt of the prisoner as he stands charged in the indictment, beyond a reasonable doubt.”

He thus in immediate connection with the reiteration of the duty of the commonwealth to prove guilt beyond a reasonable doubt, charged the jury that good character was an affirmative and substantive fact to be considered on the whole question of guilt, including reasonable doubt. Only a lawyer racking his ingenuity to find a flaw could say that this was not an adequate as well as accurate statement of the law.

Judgment affirmed.


text:
    Holmes, Appellant, v. Stanhope.

      Will — Construction—Estate in fee simple.

    Testatrix by her will directed as follows: “It is my wish .... that all my interest in the Third street property, or any other I may own be equally divided between S. and J. . . . I think the prospects of the rest of my nieces and nephews are brighter and what I have to leave is not worth dividing between so many. ... If S. or J. should die their share is to go to the one remaining, if both to E., or his mother if living, then to him.” Held, that S. and J. surviving testatrix, took a fee.
    Argued Jan. 8, 1907.
    Appeal, No. 88, Jan. T., 1906, by plaintiff, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1905, No. 1,780, for defendant on case stated in suit of Sallie B. W. Holmes v. John B. Stanhope.
    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 the real estate in question belonged to Elizabeth P. Powell who died leaving a will as follows:
    “. . . . It is my wish that after all my debts and funeral expenses are paid, and that all my interest in the Third street property, or any other I may own, be equally divided between Sallie A. Swain and John P. Howell. For Gertrude H. Stan-hope I leave the Bond John now holds and to "Willie at her death. I think the prospects of the rest of my nieces and nephews are brighter, and what I have to leave is not worth dividing between so many.
    February 4, 1907:

      “ I would like so much to leave them something more than love, but I see nothing now but bright prospects for them all, and mine would be such a mite. ... If Sallie or John should die their share is to go to the one remaining, if both to Edward Wilson Holmes, or his mother if living, then to him.”
    The plaintiff claimed that the devise to Sallie A. Swayne and John P. Howell gave a life estate only, and that as they were both dead she took an undivided interest in the land under the will as Sallie A. Swayne. Defendant claimed a fee as the successor in title to the interest of Sallie A. Swayne and John P. Howell.
    The court entered judgment for the defendant. Plaintiff appealed.

      Error assigned was in entering judgment for defendant.

      Charles Markill, with him Hood Gilpin and Gans & Hamam,, for appellant.

      Frederick G. Hewbourg, Jr., for appellee.
   Per Curiam,

The language of the will is “ It is my wish .... that all my interest in the Third street property or any other that I own be divided between Sallie A. Swain and JohnP. Howell.” This under our statute carries a fee unless a contrary intent of the testatrix appears. An estate in fee plainly given is never cut down to a lesser interest without clear evidence of intent to do so: Flick v. Forest Oil Co., 188 Pa. 311. So far is this will from showing such intent that in addition to the presumption from the general rule, the testatrix in the same paragraph expressly indicates her actual intention to give the named devisees her whole estate by an apology or explanation to her other relatives. I think the prospects of the rest of my nieces and nephews are brighter and what I have to leave, is not worth dividing between so many.”

But in the next paragraph of her will testatrix directed, “ If Sallie or John should die their share is to go to the one remaining, if both to Edward Wilson Holmes, or his mother if living, then to him,” and appellant argues that this reduces the first gift to a life estate. But here again we have not only the established presumption in such cases that testatrix meant death of the devisees in her own lifetime, but a clear expression of her actual intent. She knew of course that the devisees must die at some time, and when she used the word “ if” she must have referred to some definite time or occurrence. Her words do not admit of any other meaning, and the period or occurrence indicated was her own death when the estate as given would vest in possession. In this latter paragraph, therefore, she was providing not for a reduction of the estate in fee to one for life, but for a failure of the devise itself, partly or wholly, by the death of one or both the devisees before her own death had made it effective. Had she meant to reduce the first estate to one for life only her natural and almost only reasonable expression would have been not “ if” but “ when ” Sallie or John shall die.

Judgment affirmed.


author: Mr. Chief Justice Mitchell,

text:
    Mulholland’s Estate.

      Will — Probate—Testamentary capacity.

    A decree of the orphans' court refusing an issue devisavit vel non will be sustained where it appears that although there was some evidence of want of memory and acts of childishness on the part of testatrix, yet the affirmative and practically undisputed evidence shows that the will was drawn by an attorney at her instruction, executed in the presence of the attorney and witnesses without any party in interest being present, that testatrix knew the nature of the act she was performing, knew what property she had, what she wanted done with it, and also knew the persons whose relationship to her would make them naturally the object of her consideration.

      Lunacy — Weak-minded persons — Acts of June 25,1895, P. L. 300, and June 19, 1901, P. L. 574 — Will.
    Where a testatrix shortly after having made her will is declared a weak-minded person under the Acts of June 25, 1895, P. L. 300, and June 19,1901, P. L. 574, the operation of the decree is prospective only, and does not change the burden of proof in regard to the will; and, while such a decree may be proper evidence for consideration in a contest over the will, its effect will be defeated where it appears that the decree was secured at the sole instance of the contestant against the will.
    February 4, 1907:
    Those are unwise and dangerous acts and call for great care and circumspection in their administration. In particular the relationship of the petitioner, not only to the accused but to the accused’s property, with a view, to the -uncovering of any secret or selfish motive in the proceedings should always be made a specific point for the keenest and most searching judicial inquiry.
    Argued Jan. 10, 1907.
    Appeal, No. 228, Jan. T., 1906, by Margaret W. DaCosta, from decree of O. C. Phila. Co., Oct. T., 1905, No. 477, refusing an issue devisavit vel non in Estate of Margaret Mulholland, deceased.
    Before Mitchell, C. J., Ebll, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Appeal from register of wills.
    From the record it appeared that the register of wills directed a precept for an issue devisavit vel non to the court of common pleas to determine the question of the validity of the will. On appeal to the orphans’ court evidence was heard and Penrose, J., filed an opinion reversing the order of the register of wills, and directed the latter to admit the will and codicil to probate.
    Other facts are stated in the opinion of the Supreme Court.

      Error assigned was the decree of the court.

      Edward A. Anderson, with him Edwin S. Ward, for appellant, cited:
    Swails v. White, 149 Pa. 261; Roche v. Wegge, 202 Pa. 169.

      Wm. H. R. Lukens, for appellee.
   Opinion by

Mr. Chief Justice Mitchell,

There is no evidence in this case which would justify any court in allowing a jury to set aside this will. The circumstances under which it was drawn are undisputed. A member of the bar while on a business visit to the testatrix’s granddaughter was informed that testatrix with whom he was not personally acquainted, desired to see him. He went into the next room and was introduced to testatrix who told him she wanted to make a will. He requested the granddaughter to leave the room, and then testatrix said she had made a will at the instigation of her daughtér Mrs. DaCosta, of which she did not approve, leaving the total sum and substance of her estate to that daughter; that she desired to equally divide her property, and that she wished the children of her dead daughter to have a share of her estate. The will was then written in accordance with this expressed desire, read carefully to testatrix and approved by her ; witnesses were brought in and in their presence the will was read again to testatrix and then executed, no one being present but testatrix, the witnesses and the attorney. The will bequeathed her gold watch to one of the granddaughters, and the residue of her estate to her children and grandchildren. We thus have affirmative and practically undisputed evidence that testatrix knew the nature of the act she was performing, knew what property she had, what she wanted done with it, and also knew the persons whose relationship to her would make them naturally the objects of her consideration. These are the essential elements of testamentary capacity. On the other side there is the usual neighborhood gossip about want of memory, acts of childishness, inability to take care of herself, etc. Opinions unfortified by specific facts are a very unsafe basis on which to deprive any person of control of his property. In the evidence in this case facts to sustain the opinions as to mental weakness are notably absent. A whole volume of such testimony would be of little weight against the clear affirmative proof of testamentary capacity already shown, and what there is of it is discredited by the explicit finding of the learned judge below that “ the contestant and most if not all of her witnesses, either on cross-examination or while testifying in chief, state facts which are utterly in conflict with their assertions of imbecility.”

One feature of the case requires further notice. Shortly after the making of the will now in contest, the contestant apparently having learned of it and apprehensive that the prior will under which she would take the whole estate would be thereby revoked, filed a petition- in the court of common pleas under the Acts of June 25, 1895, P. L. 300 and June 19, 1901, P. L. 574, to have her mother declared of weak mind, and after a hearing that court reached the conclusion that the testatrix was not able, owing to weakness of mind, to take care of her own property,” and appointed a guardian. The operation of this decree was prospective only, and, therefore, it did not change the burden of proof in regard to the will. Owing, however, to the shortness of the interval between the execution of the will and the decree of the common pleas, the latter is proper evidence for consideration in a contest over the former. Apart, however, from the fact that such weak-mindedness as might lead to improvidence in the care of property is not necessarily inconsistent with testamentary capacity the decree in the present case is entitled to very little weight in view of the forcible suggestion of the learned judge of the orphans’ court: “ Whether the conclusion would have been reached had the fact been disclosed that the petitioner had recognized the capacity of the mother to take care of her property by obtaining the will of May, 1901, which she then held in her possession, by which she would succeed to the exclusive possession of the estate, may well be doubted; but the fact was not only not disclosed, but the petitioner, in testifying in the proceeding, positively denied that such a will had been executed ! ”

This case is a fresh illustration of the unwise and dangerous .character of the act referred to in Hoffman’s Est., 209 Pa. 357, and the necessity for great care and circumspection in its administration. In particular the relationship of the petitioner not only to the accused but to the accused’s property, with a view to the uncovering of any secret or selfish motive in the proceedings should always be made a specific point for the keenest and most searching judicial inquiry. Had the real facts been disclosed in the hearing in the common pleas it is not probable that the learned judge there would have appointed a guardian at the instance of a grasping daughter with such a plain interest in taking the mother’s property out of her control.

Decree affirmed with costs.


text:
    Harding, Appellant, v. Philadelphia Rapid Transit Company.
    February 4, 1907:

      Negligence — Street railways — Summer car — Riding on running board— Contributory negligence.

    One who undertakes to ride on the running board of a summer street car, outside of a lowered bar is negligent per se, and cannot recover for injuries incident to his position, whether he could have got a safer position or not.
    Argued Jan. 10, 1907.
    Appeal, No. 242, Jan. T., 1906, by plaintiff, from judgment of C. P. No. 5, Phila. Co., Dec. T., 190J, No. 861, on verdict for defendant in case of Frank V. Harding v. Philadelphia Rapid Transit Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Martin, P. J.
    The facts are stated in the opinion of the Supreme Court.
    The court gave binding instructions for defendant.

      Error assigned was in giving binding instructions for defendant.

      John McConaghy, Jr., for appellant.

      Dussell Duane and Thomas Learning, for appellee, were not heard.
   Per Curiam,

There was no evidence of defendant’s negligence. The plaintiff had no recollection of the accident and the witnesses on his side who saw it only said in general terms that when the two cars passed each other the running board of the one on which plaintiff stood was crowded and several men jumped, fell or were pushed or brushed off. A witness for the defense testified that as the oars passed a man on plaintiff’s car extended bis hand, grasped the other car and was thrown backwards against the men behind him, including plaintiff. This is the most plausible account that was given, and apart from it there is nothing to show that plaintiff on the approach of the car did not lose his nerve and jump or fall from the car.

Under the circumstances there was no presumption of negligence on the part of defendant, but even if it had been clearly shown it would have been altogether immaterial. Plaintiff was riding voluntarily in a place of manifest danger, and in so doing he assumed all the risks of the situation. It is settled law that it is contributory negligence which will bar recovery, to stand on the platform, or the running board of a car, when a place can be reached inside: Thane v. Traction Co., 191 Pa. 249; Bumbear v. Traction Co., 198 Pa. 198; and it is equally clear that one who takes a position of manifest and imminent danger assumes the risk of his position whether he could have got a safer place or not: Bard v. Traction Co., 176 Pa. 97; Malpass v. Pass. R. R. Co., 189 Pa. 599.

It is argued by appellant that he was not warned by the conductor of the danger of his position. But the lowered bar was sufficient warning in itself. It was notice that the running board on that side was a place of danger and that passengers were not expected, nor so far as the company could control the situation permitted, to use it even for the limited purpose of getting on or off the car for which the running board is intended. The alternative offered by plaintiff of having to wait for another car and thus being late in getting home is no justification. In any other country than this, plaintiff would have been forcibly prevented from getting on the car at all after the nrnnber of passengers had reached the limit, of safety or even of convenience. To attempt the enforcement of such a regulation here would certainly lead to continual quarrels and breaches of the peace. A reasonable amount of concession, therefore, to the American’s impatience of control and confidence in his own ability to take care of himself should not be visited with punishment by the infliction of penalties on the company for the passenger’s own fault. It must be definitely recognized that one who undertakes to ride on the running board outside of a lowered bar, is negligent per se and cannot recover for injuries incident to his position, whether he could have got a safer position or not.

Judgment affirmed.


author: Mr. Justice Brown,

text:
    Snyder’s Estate.

      Wills — Specific legacies — Latent ambiguity.

    Where testatrix bequeathed to legatees a certain amount of bank stock of a bank which she designates as the “Second National Bank of Mercer,” and it appears that there was no such bank of that name in the town of Mercer, a latent ambiguity in the will is disclosed, and evidence dehors it may be admitted to show that the second national bank to bo established in the town was the' “Farmers’ & Mechanics’ National Bank of Mercer” and that this bank was known to the testatrix and to other persons in the town as the “ Second National Bank.”

      Wills — Specific legacies — Bank stock.

    A specific legacy is a gift by will of a specific article or part of the testator’s estate, which is identified and distinguished from all other things of the same kind, and which may be satisfied only by the delivery of the particular thing. The law leans against specific legacies and to general ones.
    A legacy of stock, of whatever denomination, is not prima facie specific, but is a general legacy; although the testator may have had stock of the description mentioned sufficient to answer the bequest.
    Testatrix by her will directed as follows: “I also give and bequeath to S. six hundred dollars of bank stock of the Second National Bank of Mercer .... I give and bequeath to my beloved brother P. two thousand dollars of the bank stock of bank referred to above.” At the time the will was executed testatrix was the owner of twenty-six shares of the stock of the bank so known by her. After she executed her will she exchanged the twenty-six shares of bank stock for stock in a trust company. Held, that the legacies were general, and that the legatees were entitled in distribution to an amount equal to plaintiff’s twenty-six shares of the bank stock at its market value.
    Argued Oct. 13, 1906.
    Appeal, No. 79, Oct. T., 1906, by Winfield S. George, from decree of O. C. Mercer Co., April T., 1905, dismissing exceptions to auditor’s report in Estate of Ann Eliza Snyder, deceased.
    Before Mitchell, O. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Exceptions to report of J. R. W. Baker, Esq., auditor.
    The facts are stated in the opinion of the Supreme Court.

      Errors assigned were in dismissing exceptions to auditor’s report.

      February 25, 1907:

      E. N. Baer, with him. J. G. White, for appellant.
    It is well settled that a. legacy properly specific and not merely specific in its nature by being charged on a specific fund is adeemed by its sale or change of form by the act of the testator in his lifetime: Blackstone v. Blackstone, 3 Watts, 335, 337; Ludlam’s Estate, 13 Pa. 188; Hoke v. Herman, 21 Pa. 301.
    The claim that the words “ Second National Bank” were written in the bequest by mistake and that such mistake can be proved and corrected by parol evidence and the words “ Farmers’ & Mechanics’ National Bank ” substituted, is contrary to the established rules of interpretation and will not be permitted : Wallize v. Wallize, 55 Pa. 242, 248; Sauer v. Mollinger, 138 Pa. 338; Best v. Hammond, 55 Pa. 409; Robinson v. Williams, 1 W. N. C. 337.

      Q. A. Gordon, for appellees.
   Opinion by

Mr. Justice Brown,

At the time the testatrix, Ann Eliza Snyder, executed her. will she was the owner of twenty-six shares of the capital stock of the Farmers’ & Mechanics’ National Bank of Mercer of the par value of $100 each. Among other bequests are the following: “ I also give and bequeath to the said Ina Stuart six hundred dollars of bank stock of the Second National Bank of Mercer, said bank being located in Mercer, Mercer County, Pa..... I give and bequeath to my beloved brother Peter Myers two thousand dollars of the Bank stock of Bank referred to above.”

It is admitted that there did not exist at the time the will was written, or at any other time, a bank in Mercer under the corporate name of the Second National Bank of Mercer.” From this misdescription of the stock there arose a latent ambiguity in the will and evidence dehors it was properly admitted to explain it and to show what stock was the subject of the bequests: Best v. Hammond, 55 Pa. 409. Under the admissions before the auditor and the testimony offered, there can be no doubt that she meant by the “ Second National Bank of Mercer” the Farmers’ & Mechanics’ National Bank of Mercer. The first national bank to be established in that place was the First National Bank of Mercer, organized in 1864, and carrying on business ever since. The second national bank to be established in the town was the Farmers’ & Mechanics’ National Bank of Mercer, organized in 1874. It was at this bank, of which the testatrix was a stockholder, that she transacted all of her banking business. She acquired the stock in it from her husband, Jacob Snyder, deceased, who gave it to her by his will dated April 14, 3879. In it he calls the stock “ the capital stock of the Second National Bank stock of Mercer said bank being located in Mercer, Mercer County and State of Pennsylvania.” The Farmers’ & Mechanics’ National Bank undoubtedly, and naturally, too, wms known and designated by the testatrix and others as the Second National Bank, because in point of time it was the second national banking institution to be organized in the town. It is, therefore, clear that when she referred to bank stock as stock of the Second National Bank of Mercer, she meant stock of the Farmers’ & Mechanics’ National Bank of that place.

After she executed her will, the testatrix exchanged her twenty-six shares of the Farmers’ & Mechanics’ National Bank stock for stock in the Mercer County Trust Company, and, as she did not have the bank stock at the time of her death, the appellant, her residuary legatee, insisting that the legacies to the appellees were specific, contends that they were adeemed, and that the sums awarded to them should have passed to him.

The law leans against specific legacies and to general ones : Blackstone v. Blackstone, 3 Watts, 335; Ludlam’s Estate, 13 Pa. 187; Balliet’s Appeal, 14 Pa. 451. “ A specific legacy or devise is a gift by will of a specific article or part of the testator’s estate, which is identified and distinguished from all other things of the same kind, and which may be satisfied only by the delivery of the particular thing.” 18 Am. & Eng. Ency. of Law, 2d ed., 714. By these two bequests the testatrix does not give to the legatees specific shares of bank stock belonging to her, but gives to each of them, in general terms, a certain amount of stock, without identifying any particular shares or distinguishing those given from all others of the same kind of stock. Under all the authorities these are general legacies.

In Blackstone v. Blackstone, supra, 335, the words of the bequest were: “I give and bequeath all my two hundred and fifty shares of capital stock which I hold in the Union Bank of Pennsylvania.” Gibson, Chief Justice, in holding that this legacy was specific, said: The remaining question is, whether the legacy before us is a specific one. The request is of all my two hundred and fifty shares of capital stock which I hold in the Union Bank of Pennsylvania.’ The words which I hold ’ certainly individuate the stock as a corpus with as much precision as would the words ‘ standing in my name,’ which made the bequest specific in Sleech v. Thornington, or the words ‘ all the stock which I have in the three per cents,’ which was allowed to have the same effect in Humphreys v. Humphreys, and it is even more specific than the words in Drinkwater v. Falconer, ‘ to be paid out of my dividends of 400 1. in the joint stock of South Sea annuities, now standing in the company’s books in my name,’ which were held to be sufficiently so, though the stock was described as a fund for payment, because the residue was given in nearly the same terms, and charged with the preceding bequest. It is certainly true that the presumption of intention is favorable to general legacies in the first instance, and that it requires clear proof of a restrictive intention to repel it; but the word my ’ prefixed to the' word ‘ annuities ’ or stock, has always been held sufficient of itself to do so, though the mere possession of such annuities or stock at the date of the will, without words of reference to fix its identity as the subject of bequest, has come short of it.” The request in Ludlam’s Estate, supra, as taken from the opinion of Judge King in the court below, 1 Parsons’ Select Equity Cases, 116, was: “ One thousand dollars of the United States six per cent, stock or loan of the year 1812, standing in my name on the books of the loan office, Pennsylvania, as per certificate No. 269.” Of this bequest it was said by Coulter, J.: “We come then to the question whether this was a specific legacy or not. If it was specific (of the very corpus of the United States stock held by the testator), then it was adeemed; because the corpus of that stock was extinguished and paid to the testator before his death. The words of the bequest would seem to leave little doubt on this subject: ‘ One thousand dollars of the United States six per cent, stock of the year 1812, standing in my name in the loan-office Penn’a, as per certificate No. 269.’ It is not a bequest of $1,000, payable out of stock held by him; but $1,000 of stock which stands in his name in the loan-office, by certificate 269. It is the very thing itself, the corpus of the stock, that is bequeathed. In Blackstone v. Blackstone, 3 Watts, 337, where the bequest was ‘ of all my 250 shares of stock which I hold in the bank, together with such interest as may have accrued thereon,’ and where it appeared that testator sold the stock in his lifetime, and took a bond for the same, although there was evidence that the testator declared the bond should be in lieu of the stock, it was ruled that the legacy was adeemed. There, the change of the corpus of the legacy was from bank stock into a bond; here, the change is from government stock into money, which mingled itself with the other money of the testator. There, it was my bank stock which I hold; ’ here, it is ‘ my government stock, standing, in my name, on the books,’ etc., as per certificate 269.’ One does not individuate the corpus of the gift more distinctly than the other, and each is so definite as to defy mistake. These very words, to wit: ‘ stock standing in my name,’ were held in Barton v. Cooke, 5 Ves. 461, to make a legacy specific.” But such are not the legacies here. There is nothing on the face of the bequests to show that any particular shares of the bank stock should pass to the legatees. The testatrix does not refer to them as “my bank stock,” oras stock “ which I hold.” The bequests are simply of twenty-six hundred dollars of bank stock. In Sponsler’s Appeal, 107 Pa. 95, the testator had at the time of the execution of his will and at his death but fifteen shares of second preferred Cumberland Valley Railroad stock. A bequest to Alice Rheem of “fifteen shares of second preferred Cumberland Valley Railroad stock” was held to be a general legacy, Gordon, J., saying: Any fifteen shares of the preferred stock of the Cumberland Valley Railroad Company would meet and fulfill the donation.”

The rule as to legacies of stock is thus laid down in Hawkins on Wills, *301, and these bequests are strictly within it, for the testatrix had twenty-six shares of the stock of the bank worth, at par, $2,600 : “ A legacy of stock, of whatever denomination, is not prima facie specific, but is a general legacy; although the testator may have had stock of the description mentioned sufficient to answer the bequest. (Simmons v. Vallance, 4 Bro. C. C. 345; Purse v. Snaplin, 1 Atk. 414; Sibley v. Perry, 7 Ves. 522.) Thus, if the testator, having 1,000 1.3 per cents, or long annuities, bequeaths that sum to A., the gift is not adeemed by the sale of the stock in his lifetime, but operates as a direction to the executor to purchase the stock for A. out of the general assets.' The rule is the same whether the gift be of ‘ 1,000£ 3 per cents,’ or of '1,000£ in the 3 per cents: ’ (Webster v. Hale, 8 Ves. 410.)” In Robinson v. Addison, 2 Beav. 515, a testator owning fifteen and a half shares of stock in the Leeds and Liverpool Canal Company, bequeathed five and a half shares of stock in that company to A., five shares to B., and five shares to C. There was no description or reference in the will to show that he intended to give the particular shares which he held at the date of his will. At his death he possessed no shares in the said canal company, and it was held that the legacies were general and not specific. The stock of that company was seldom sold in the market, and it was urged for that reason, apart from the disposal of the precise number of shares held by the testator, that he must have intended to give these specific shares, and not that his executor should purchase them for the legatees out of the general assets of his estate. The court held the legacies to be general, saying : It is, however, clear that the testator, if he had meant to give only the shares which he had, might have designated them as ‘ his,’ — that the mere circumstance of the testator having, at the date of his will, a particular property, of equal amount to the bequests of the like property which he has given without designating it as the same, is not a ground upon which the court can conclude that thedegacies are specific. . . . There is no description or reference to shew that he meant to give the particular shares which he had at the date of his will, nor any trust from which it can, as it appears to me, be concluded that he must have meant only such shares as he had at the respective times of making his will and of his death. . . . The shares, though not frequently sold, are nevertheless occasionally bought and sold, and may be had for money.” Authorities need not be multiplied to sustain the correctness or the view of the court as to the character of these legacies.

The testatrix did not intend to give money, for if she had so intended she would have simply made pecuniary bequests to the legatees. What she intended to give them was a certain amount of bank stock, measured by its par value, and what they arc entitled to get from her estate is the market value of the same: Johnson’s Estate, 170 Pa. 177. The awards to them were upon this basis.

The assignments are all overruled, and the decree is affirmed at appellant’s costs.


text:
    Commonwealth v. Johnson, Appellant.

      Criminal law — Murder—Confession.
    To exclude a voluntary confession of guilt some inducement must bo held out to prompt to falsehood, and of this the trial court must be the judge in the first instance, and its ruling will be set aside only for manifest error.
    On the trial of an indictment for murder it appeared that when the prisoner was in jail he sent for an acquaintance to become his bail. The latter refused. The acquaintance testified at the trial that when the prisoner started to tell about the killing he was told that he was not obliged to say anything unless he desired to do so, and that whatever he said might be used against him. After this caution he made a confession without any inducement or hope having been held, out to him. Held, that the confession was properly admitted in evidence.

      Criminal law — Murder—Principal—Accessory.
    A person may be convicted of murder of the first degree where it appears that he entered into a plot with another by which the latter was to do the killing, while he himself should wait some little distance from the house for about three-quarters of an hour to allow the actual murderer to escape, and then set fire to the house to conceal the crime, and that this plot was carried out.
    Argued Jan. 7, 1907.
    Appeal, No. 295, Jan. T., 1906, by defendant, from judgment of O. &. T. Bradford Co., Dec. T., 1904, No. 13, on verdict of guilty of murder of the first degree in case of Commonwealth v. Charles Johnson.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.

      February 25, 1907:
    Indictment for murder. Before Fanning, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Yerdict of guilty of murder of the first degree. Defendant appealed.

      Error assigned among others was in submitting the case to the jury.

      I. McPherson, with him Lilley & Wilson, for appellant, cited as to the admission of the confession:
    Com. v. Clark, 130 Pa. 641.

      Charles E. Mills, district attorney, with him David E. Kaufman and Wm. Maxwell, for appellee.
   Opinion by

Mr. Justice Brown,

There was sufficient evidence in this case to establish the corpus delicti. What it was, need not be set out in detail. The prisoner was indicted for the murder of Maggie B. Johnson, the wife of his brother, Bigler Johnson. The latter, having been indicted for her murder, was adjudged by the court below on his plea of guilty to have been guilty of murder of the first degree and sentenced to death. This judgment was affirmed in Commonwealth v. Johnson, 211 Pa. 640, and he was subsequently executed.

The murder was a most atrocious one. Bigler Johnson was not living with his wife, but was paying her $6.00 per month for her support. That he might be freed from this burden, she was murdered in her home on the night of September 18, 1904, and, with her, a child, about ten years of age, who was her companion. To conceal the crime, the house was burned. The charred remains were found in the ashes. The appellant was indicted for murder as one of the participants in the killing of his sister-in-law, and the only questions to be determined by us on this appeal are the sufficiency of the evidence to justify his conviction of murder of the first degree and the proper submission of the case to the jury by the trial judge.

Without the appellant’s confession, made October 25,1904, the circumstantial evidence of his guilt was weak,' but not so weak that the court was bound to say to the jury that without it there could be no conviction. In no part of the charge were they distinctly told that the circumstantial evidence was sufficient to convict, though they might have inferred from the instructions that it was, if they believed it. The evidence upon which they manifestly did convict and upon which they must have understood the court to say that the case of the commonwealth chiefly rested, was the confession.

On October 25, 1904, the prisoner, then in jail, sent for G. C. Hollon, and asked him to become his bail. Hollon refused, telling him that the case looked dark for him. The prisoner then stated that he had not done the killing, but had “ done the burning, or burned the building.” He was then told by Hollon that if he was only guilty of that he would be punished accordingly, and he shortly afterwards made the confession offered at the trial. Hollon testified that the prisoner was told he was not obliged to say anything unless he desired to do so; that no inducement or hope had been held out to him; that he was told that whatever he said might be used against him, and, after this caution, the confession was made. In substance the prisoner admitted that on the night preceding the murder he heard his mother speaking to other members of the family in regard to killing her daughter-in-law, Maggie B. Johnson; that the next morning he called her attention to it and she gave him no particular reply; and that on Sunday, September 18, he and Bigler Johnson were in Towanda, when Bigler talked to him about killing his wife. The following is from the confession of the prisoner taken down as he made it: “ He (Bigler) asked the hack driver if the train was gone, he told him yes; he said he would go down home and leave his satchel at Steve Sullivan’s; he said he and Ma was going to put Mag. out of the way; Nancy was going to stand outside the house watching. lie said £ I will give you and Lanson three dollars a piece if you will burn the house; ’ I told him I did not want to have anything to do with it; he said he would give me the three dollars just as soon as I earned it;’ I said £ get found out anyway;’ he said £ it won’t; ’ he said £ if you don’t do it, I will get you in it anyway; ’ I said £ I don’t want anything to do with it; ’ he said £ what do you say ? ’ he said £ Lanson said he would go up with you to burn the house; ’ so he asked me what time I would be down; I told him about eight o’clock or half past eight; he said they would be down there by the bridge, Powers’ bridge, and I went down there from Will’s; they were there by the bridge, Bigler and Ma, Lanson and Nancy; he said you got any matches ?’; I said 'no;’ he reached in his pocket and give me a handful of matches. Q. Who was this ? A. Bigler; and I put them in my pocket and we went up; he said don’t go too fast, so I can go down and change my clothes and go up town ; ’ and then I walked along up the road, me and Lanson. We waited there to the. four corners and he came along and -whistled. Q. Which four corners was that ? A. Where you turn up towards Perry Pool’s up that river road. He told us to wait about three-quarters of an hour and that would give him a chance to get to town. Q. Bigler told you? A. Yes; and we waited along the road there about three-quarters of an hour, and then went up and poured oil on the carpet and floors on the bedroom and on the outside of the house and set the fire, and went down the road, went back home; when got down by Herb Lamb’s looked back and the house was all in flames; Lanson, he went on down home and I went up to Will’s.”

" To exclude a voluntary confession of guilt, some inducement must be held' out to prompt to falsehood, and of this the trial court must be the judge in the first instance, and their ruling will be set aside only for manifest error: Fife v. Commonwealth, 29 Pa. 429; ” Commonwealth v. Johnson, 162 Pa. 63. After having heard a recital of the circumstances under which this confession was made, there was no semblance of error in admitting it. But even after it was admitted the trial judge, with all due regard for the rights of the prisoner, instructed the jury : While the question of the admission of this alleged confession was primarily for the court, and it was received in evidence, yet we say to you, carefully weigh the evidence, in the light of the defendant’s surroundings and environment, his apparent mental calibre, his age, the fact that he was in jail, that he was trying to secure bail and what was said, and from all the evidence determine whether or not the confession or statement read was freely and voluntarily made, as we have explained to you. If it was not, exclude it from your consideration. Direct your inquiries in the same manner to the other statements, and if they were not voluntarily made, exclude them also from your consideration, treating them all the same as though they never had been offered in evidence, and base your verdict solely upon the remaining testimony in the case. If, however, you find the confession was freely, voluntarily made by the defendant after being properly warned, it is important evidence in the case for your consideration.”

Hut it is contended that even if the confession of the prisoner was voluntary and true, it did not not connect him with the actual commission of the crime, and under it he was at most guilty only as accessory after the fact. The answer to this is that he was in the plot before the murder was committed and remained in it until it was consummated by the burning of the house. After Bigler had planned it he told him what he was about to do and assigned to him work to be done in carrying out the murderous scheme. The prisoner agreed to do what was asked of him. If he had not so agreed in advance of the commission of the crime to aid in its concealment and in the escape of the murderer, the murder might not have been committed. What he agreed to do was in the eye of the law an agreement to aid and abet, and he carried out his agreement. If, in pursuance of an agreement with Bigler, he had gone with him to the house and stood outside of it while the murderer went in to kill the woman, and, when he emerged, had fired it to conceal the crime and facilitate the escape of the guilty party or parties, that the degree of his guilt would have been no less than that of the actual murderer cannot be questioned. Instead of doing that he did what must be regarded as the same thing in determining the degree of his guilt. He took his iniquitous post at some distance from the house, waiting for the murder that he knew was about to be committed, and, after the lapse of about three-quarters of an hour, the time agreed upon by Bigler and himself as sufficient to give the former a chance to get away, he went to the house and fired it in pursuance of his previous agreement to do so. At the time the murder was being committed he was assenting to it by agreement with the actual perpetrator of it, and, with the perpetrator’s previous knowledge, had taken a place near the scene of the crime for the purpose of aiding and encouraging its commission, and this, in the judgment of the law, made him constructively present aiding in the commission of the murder. When the law requireth the presence of the accomplice at the perpetration of the fact, in order to render him a principal, it doth not require a strict, actual, immediate presence, such a presence as would make him an eye or ear witness of what passeth. Several persons set out together, or in small parties, upon one common design, be it murder or other felony, or for any other purpose unlawful in itself, and each taketh the part assigned him; some to commit the fact, others to watch at proper distances and stations to prevent a surprise, or to favor, if need be, the escape of those who are more immediately engaged. They are all, provided the fact be committed, in the eye of the law present at it; for it was made a common cause with them, each man operated in his station at one and the same instant towards the same common end; and the part each man took tended to give countenance, encouragement and protection to the whole gang, and to insure the success of their common enterprise:” Foster’s Crown Law, 349, 350, Discourse 3, sec. 4.

No one of the assignments can be sustained. All are overruled and the .judgment is affirmed, with direction that the r'ecord be remitted for the due execution of the sentence.