author: Mr. Justice Brown,

text:
    Commonwealth v. Molten, Appellant.

      Criminal law — Murder—Insanity—Burden of proof — Evidence—Instructions.

    1. When insanity is set up as a defense to an indictment charging the commission of a crime it becomes, under sec. 66 of the Criminal Code of March 31, 1860, P. L. 427, a distinct issue before the jury, and if in their judgment the accused ought to be acquitted because he was insane at the time he committed the act charged against him, there must be a special finding by the jury of insanity as the ground of acquittal.
    2. While the burden is upon those defending a prisoner charged with crime, to establish his insanity at the time the act was committed as a reason why he should not be held responsible for the consequences of his act, it is not necessary that his insanity should be established conclusively and beyond all reasonable doubt. It need only be established by the fair preponderance of proof.
    3. On the trial of an indictment for murder where insanity is set up as a defense, it is reversible error for the trial judge to charge as follows: “In considering the question of insanity your-first question is whether the evidence clearly establishes that the defendant was insane at the time the attack was committed.”
    4. In such a case the error is not cured by the fact that the trial judge in other parts of his charge, and in his answers to points submitted by the prisoner, correctly stated the law as to the degree of proof required to establish insanity.
    Argued Jan. 16, 1911.
    Appeal, No. 45, Oct. T., 1911, by defendant, from judgemnt of O. & T. Allegheny Co., Sept. T., 1910, No. 42, on verdict of guilty of murder of the first degree in case of Commonwealth v. Julius Molten.
    Before Brown, Mestrezat, Potter, Elkin and Mosch-zisker, JJ.
    Reversed.
    Indictment for murder. Before Swearingen, P. J.
    The opinion of the Supreme Court states the case.
    Verdict of guilty of murder of the first degree upon which judgment of sentence was passed. Defendant appealed.

      Error assigned was the portion of the charge quoted in the opinion of the Supreme Court.

      Frank R. Steward, with him W. H. Stanton, for appellant.
    In this state, the rule is well settled that where the défense offered is insanity, such defense must be made out by “fairly preponderating evidence:” Ortwein v. Com., 76 Pa. 414; Lynch v. Com., 77 Pa. 205; Coyle v. Com., 100 Pa. 573; Com. v. Gerade, 145 Pa. 289; Com. v. Gutshall, 22 Pa. Superior Ct. 269.
    Where there is an erroneous instruction on a point vital to the defense, especially in a capital case, as here, such' instruction is reversible error and a new trial will be’ granted, even though the correct instruction be also given, on the ground that it is left to conjecture which instruction the jury followed: Com. v. Gerade, 145 Pa. 289; Com. v. Greene, 227 Pa. 86; Com. v. Sayars, 21 Pa. Superior Ct. 75; Com. v. Frucci, 216 Pa. 84; Com. v. Deitrick, 221 Pa. 7.
    February 6, 1911:

      Harry H. Rowand, assistant district attorney, with him W. A. Blakeley, district attorney, for appellee.
    It is only fair that the sentences immediately preceding and following are so closely connected with the one complained of, that they should be taken, read and considered together: Kilpatrick v. Com., 31 Pa. 198; Green v. Com., 83 Pa. 75; Alexander v. Com., 105 Pa. 1; Com. v. Johnson, 133 Pa. 293; Com. v. Zappe, 153 Pa. 498; Com. v. Mudgett, 174 Pa. 211; Com. v. Wireback, 190 Pa. 138; Com. v. Lewis, 222 Pa. 302.
    Upon the measure of proof and burden cast upon the defendant where insanity is alleged, we call attention to the famous case of Daniel McNaughten, 10 Clark & Finnelly, 200: Ortwein v. Com., 76 Pa. 414; Lynch v. Com., 77 Pa. 205; Com. v. Wireback, 190 Pa. 138; Com. v. Heidler, 191 Pa. 375; Com. v. Gearjardt, 205 Pa. 387.
   Opinion by

Mr. Justice Brown,

One of the defenses made for the prisoner on his trial in the court below was insanity, and of it the learned trial judge said to the jury in his general charge, “In considering the question of insanity your first question is whether the evidence clearly establishes that the defendant was insane at the time the attack was committed.” This language is the subject of the only assignment of error.

By the sixty-sixth section of our criminal code of March 31, 1860, P. L. 427, it is provided that “In every case in which it shall be given in evidence upon the trial of any person charged with any crime or misdemeanor, that such person was insane at the time of the commission of such offense, and he shall be acquitted, the jury shall be required to find specially whether such person was insane at the time of the commission of such offense, and to declare whether he was acquitted by them on the 'ground of such insanity.” When insanity is set up as a defense to an indictment charging the commission of a crime, it becomes, under the act of 1860, a distinct issue before the jury, and if, in their judgment, the accused ought to be acquitted because he was insane at the time he committed the act charged against him, there must be a special finding by the jury of insanity as the ground of acquittal. Though we have repeatedly said how a jury is to be led to the conclusion of insanity in such a case, we are called upon to do so again on this appeal. While the burden was upon those defending the prisoner to establish his insanity at the time he shot the deceased as a reason why he should not be held responsible for the consequences of his act, it was not necessary that his insanity should be established conclusively and beyond all reasonable doubt. It was not, however, sufficient that the evidence had merely raised a doubt as to his insanity, for to doubt is to not believe, and nothing but belief that the prisoner was actually insane at the time of the commission of the offense charged against him could have justified the jury in acquitting him on that ground. Such a belief under the humane rule of our cases, is one that results from a fair preponderance of the evidence. In Meyers v. Com., 83 Pa. 131, in which the defense was insanity, the instruction to the jury by the trial judge was that the duty had devolved upon the prisoner, if he was to be cleared of the killing, to satisfy them beyond a reasonable doubt that he was insane at the time the act was committed. In holding that this was error calling for a reversal of the judgment, we said, through Agnew, C. J.: “There is one error for which the sentence in this case must be reversed. It appears in several parts of the charge, leaving no doubt as to the meaning of the learned judge who presided at the trial. It must, therefore, have impressed the minds of the jurors. Without specifying each instance, it may be summed up in a single statement, that the judge instructed the jury, that they must be satisfied beyond a reasonable doubt, that the prisoner was insane at the time the act was committed. This statement is too stringent and throws the prisoner upon a degree of proof beyond the legal measure of his defense. That measure is simply proof which is satisfactory — such as flows fairly from a preponderance of the evidence. It need not be beyond doubt. A reasonable doubt of the fact of insanity, on the other hand, is not sufficient to acquit upon a defense of insanity. This has been held in several cases: Ortwein v. Commonwealth, 26 P. F. Smith, 414; Lynch v. Commonwealth, 27 Id. 205; Brown v. Commonwealth, 28 Id. 122. Sanity being the normal condition of men, and insanity a defense set up to an act which otherwise would be a crime, the burthen rests upon the prisoner of proving his abnormal condition. But the evidence of this need be. only satisfactory — and the conclusion such as fairly results from the evidence. Where the evidence raises a balancing question, and the mind is brought to determine its preponderance, there may be a doubt still existing in the mind, yet the actual weight may be with the prisoner; and this proof should be considered satisfactory. In cases of conflicting evidence the preponderance must govern, there being no other rational means of decision. But if we say in such a case it must be satisfactory beyond a reasonable doubt, it is evident the expression implies more than a mere preponderance. It is difficult to define the precise difference between the two measures, yet we are conscious in our own minds that to be convinced beyond a reasonable doubt is a severer test of belief than to be satisfied that the preponderance falls on that side.”

When the jury in the present case heard the trial judge say to them that, in passing upon the prisoner’s alleged insanity, the first question for their consideration would be whether the evidence “clearly” established it, they could have attached but one meaning to his words, which was that, before they could acquit on the ground of insanity, it must have been clearly proven that the prisoner was insane when he shot the deceased. This exacted a degree of proof beyond the measure of the law’s requirement, as was again made plain by our Brother Stewart in Com. v. Lee, 226 Pa. 283.

In Coyle v. Com., 100 Pa. 573, the trial judge charged the jury that as the law presumes sanity, that presumption “can only be overthrown by clearly preponderating evidence.” This was held to be substiantal error, Sharswood, C. J., remarking on the argument: “ ‘Clearly,’ as used in the answer to the defendant’s third point is, in my judgment, equivalent to instructing the jury that they must be satisfied beyond a reasonable doubt of the prisoner’s insanity, and we have decided that such an instruction is error.” In reversing the judgment and awarding a new trial we said: “It is not sufficient cause for acquittal of one charged with crime, and defending under a plea of insanity, that a doubt is raised as to its existence. As sanity is presumed, when the fact of insanity is alleged it must be satisfactorily proved: Ortwein v. Commonwealth 26 P. F. Smith 414; Lynch v. Same, 27 Id. 205. The question remains, what degree of proof is necessary to overthrow the presumption of sanity? The court said it can be ‘only by clearly preponderating evidence.’ The court also (misled, it is said, by the language in the brief furnished it) cited the case of Brown v. Commonwealth, 28 P. F. Smith 122, as declaring to ‘establish this defense (viz., insanity), it must be clearly proved by satisfactory and clearly preponderating evidence.’ This is not the language of that case. It is demanding a higher degree of proof than the authorities require. It may be satisfactorily proved by evidence which fairly preponderates. To require it to ‘clearly preponderate’ is practically saying it must be proved beyond all doubt or uncertainty! Nothing less than this will make it clear to the jury, and make them conclusively convinced. This is not required to satisfy the jury: Hiester v. Laird, 1 W. & S. 245. It is not necessary that the evidence be so conclusive as to remove all doubt: Ortwein v. Commonwealth, supra; Brown v. Same, supra; Meyers v. Same, 2 Norris, 131; Pannell v. Same, 5 Id. 260. When one is on trial for his life, care must be taken that he receive from the court that due protection which the law has wisely thrown around him. Evidence fairly preponderating is sufficient.” A later case is Com. v. Gerade, 145 Pa. 289. The jury were there instructed that, to establish a defense on the ground of insanity, it must be “clearly proved” that at the time of committing the act the party accused was insane. No distinction can be pretended between “clearly established” and “clearly proved,” and in holding that error has been committed in the instruction that insanity must be clearly proved, it was said, through Mr. Justice Sterrett: “Without questioning the general correctness of what was said, in that connection, as to the kind of insanity that constitutes a defense to an act, which would otherwise be punishable as criminal, we think the degree of proof necessary to sustain such a defense was too strongly stated in saying ‘it must be clearly proved.’ This was imposing on the defendant a greater burden than the law requires. In harmony with the humane principle of the criminal law, that every person accused of crime shall be presumed innocent until his guilt is clearly established, it is incumbent on the commonwealth to prove, not only to the satisfaction of the jury but beyond a reasonable doubt, the presence of every ingredient necessary to constitute the crime charged in the indictment. That burden, as was said in Turner v. Com., 86 Pa. 54, never shifts, but rests on the prosecution throughout; so that, in all cases, a conviction can be had only after the jury has been convinced, beyond a reasonable doubt, of the defendant’s guilt. It necessarily follows that, if the evidence is such as to leave a reasonable doubt in the minds of the jury as to the existence of any necessary ingredient of the crime charged, they should give the defendant the benefit of that doubt. But presumptions of fact sometimes stand for full and express proof until the contrary is shown. For example, inasmuch as sanity is the normal condition of man, every one is presumed to be sane, and that presumption holds good, and is the full equivalent of express proof, until it is successfully rebutted. When insanity of the defendant is set up as a defense, it is incumbent on him to rebut the ordinary presumption of sanity, and show, not beyoñd a reasonable doubt, nor either clearly or conclusively, but by fairly preponderating evidence, such as is ordinarily required to prove a fact in civil issues, that he was insane at the time of committing the alleged crime. In Lynch v. Com., 77 Pa. 205, 213, the trial judge refused to charge 'that, if the jury have a reasonable doubt as to the condition of the defendant’s mind at the time the act was done, he is entitled to the benefit of such doubt, and they cannot convict;’ and, for further answer to the point, said: 'The law of this state is that where the killing is admitted, and insanity or want of legal responsibility is alleged as an excuse, it is the duty of the defendant to satisfy the jury that insanity actually existed at the time of the act; a mere doubt as to such insanity will not justify the jury in acquitting on that ground.’ That instruction was approved by this court, and substantially the same instruction was afterwards sanctioned in Ortwein v. Com., 76 Pa. 414, 421, 425, and other cases. In Coyle v. Com., 100 Pa. 573, the same rule of evidence was again recognized. It was further held to be error, in that case, to instruct the jury that the defense of insanity should be proved by clearly preponderating evidence. The instruction should have been ‘fairly preponderating,’ instead of ‘clearly preponderating evidence.’ ” We have quoted at length from our prior utterances on the question again before us on this appeal in the hope that they may be a chart which, after having been reread, will not hereafter be forgotten, to the almost certain delay of justice. No matter what the crime may be, he who is charged with it, however apparent his guilt may be, must be tried according to the law of the land.

But it is contended by the commonwealth that, inasmuch as the trial judge, in a portion of his charge immediately preceding the language complained of by the assignment of error, and in his answers to the second and third points submitted by the prisoner, correctly stated the law as to the degree of proof required to establish insanity as a defense, the jury must have fully understood the measure required, and the judgment should not, therefore, be reversed. To this we cannot assent. The language complained of was manifestly erroneous and the words were spoken for the guidance of a jury upon whom the law had imposed the grave responsibility of determining whether one of their fellow men should live or die. Who can tell which instruction they followed? The words that the insanity of the prisoner must have been “clearly” established before they could acquit him on that ground may have sounded in their ears until their verdict was reached, and if so, the fair preponderance of the evidence may have availed the prisoner nothing. It is enough to know in such a case that an erroneous instruction was of a character likely to mislead the jury on a point vital to the defendant.

The assignment of error is sustained and the judgment reversed with a venire facias de novo.


source: Caselaw Access Project

author: Mr. Justice Mesteezat,

license: Public Domain

text:
    Provident Life & Trust Company v. Hammond, Appellant.

      Constitutional law — Title of act — Taxation—Corporations—Act of June 7, 1907, P. L. 480.

    1. The Act of June 7, 1907, P. L. 430, entitled “An Act to further amend Section twenty-one of an Act entitled ‘An Act to provide revenue by taxation’ approved June twenty-seventh, one thousand eight hundred and seventy-nine,” violates art. Ill, sec. 3, of the constitution of Pennsylvania which provides that “no bill, except general appropriation bills shall be passed containing more than one subject which shall be clearly expressed in its title,” inasmuch as no acts of assembly were approved on June 27, 1879, and the title specified was borne by two different acts approved in different years neither one of which ever had a twenty-first section, and neither of which acts referred to the subject-matter embodied in the act of June 7, 1907.
    2. The word “clearly” used in art. Ill, sec. 3, of the constitution of Pennsylvania, is omitted from similar provisions of the constitutions of most of the other states of the Union, and consequently the decisions in those states cannot be relied upon as precedents in determining the construction of the Pennsylvania constitutional provision.
    3. The purpose of the constitutional enactment was to prevent fraud and deception by requiring the title of the bill to disclose fully and clearly its subject so that all interested parties could be heard for and against the proposed legislation if they desired. It was not the title to an act which the constitutional provision required to be clearly expressed, but the title to the bill.
    4. There is no law authorizing the secretary of the commonwealth or the statute clerk to insert in the pamphlet laws marginal notes of an explanatory character. Such notes are useful as aiding in an examination of the laws, but cannot be used as an aid in the construction of them.
    5. The marginal note on page 430 of the pamphlet laws of 1907, viz., “Section 21 Act of June 8, 1893, cited for amendment,” has no curative power because (1) there was no authority in the statute clerk to insert it, and (2) because it was inserted long after the enactment of the statute.
    Argued Jan. 3, 1910.
    Appeal, No. 229, Jan. T., 1910, by defendants, from decree of C. P. No. 2, Phila. Co., Dec. T., 1907, No. 2438, on bill in equity in case of The Provident Life & Trust Company of Philadelphia v. John S. Hammond et al.
    Before Fell, C. J., Brown, Mes-trezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Wiltbank, J.
    The case is stated in the opinion of the Supreme Court.

      Error assigned was decree awarding an injunction.

      Alex. Simpson, Jr., with him Joseph W. Catharine, assistant city solicitor, J. Howard Gendell, city solicitor, and
      M. Hampton Todd, attorney general, for appellants.
    The title of the Act of June 7, 1907, P. L. 430, is not so defective as to make the act unconstitutional: Com. v. Curry, 4 Pa. Superior Ct. 356.
    It is true that the title must not be misleading, but who could have been misled by this title? Either the inquirer knew or he did not know that the Act of 1879, P. L. 112, was dated June 7, 1879. If he did not know that, then he was not misled, for the fact that it was a further amendment to “An act to provide revenue by taxation” at once gave him sufficient notice of its contents. If he did know it, then he knew that there was an error in the date, and consequently he was not misled thereby. In every aspect of the matter, therefore, no one could have been misled by that typographical error: Citizens’ Street Ry. Co. v. Haugh, 142 Ind. 254 (41 N. E. Repr. 533); Shoemaker v. Smith, 37 Ind. 122; State v. Robinson, 32 Ore. 43 (48 Pac. Repr. 357); Nobles v. State, 38 Texas Crim. Rep. 330; People v. Supervisor of Onondaga, 16 Mich. 254; Mt. Joy Borough v. Turnpike Co., 182 Pa. 581; Rodger’s Petition, 192 Pa. 97; Samler v. Meyers, 7 Pa. Dist. Rep. 147; Com. v. Attorney General, 13 Pa. Dist. Rep. 521; American Surety Co. v. Great White Spirit Co., 58 N. J. Eq. 526; State v. Page, 20 Montana, 238; Com. v. Taylor, 159 Pa. 451; Com. v. Gilligan, 195 Pa. 504; McKeesport Borough v. Owens, 6 W. N. C. 492; Sugar Notch Borough, 192 Pa. 349; Com. v. Dickert, 195 Pa. 234; Allegheny County Home’s Case, 77 Pa. 77; Com. v. Provident Life & Trust Co., 12 Pa. Dist. Rep. 516.

      M. E. Olmsted and Abraham M. Beitler, with them Samuel Dickson, for appellee.
    The act of 1907 is unconstitutional, the subject thereof not being expressed in its title, which declares its purpose to be to further amend the twenty-first section of an act approved upon a date upon which no act whatever was approved, and bearing a title borne by two different acts approved in different years, neither one of which ever had a twenty-first section. It makes no reference at all to the act which is cited for amendment in the body of the act. No layman, lawyer or judge could, from the title of the act alone, ascertain its purpose or discover what act it was trying to amend.
    February 13, 1911:
    The adding of the side note in the pamphlet laws after the passage of the bill does not cure its constitutional defect: Dorsey’s App., 72 Pa. 192; Com. v. Shulte, 26 Pa. Superior Ct. 95; Union Pass. Ry. Co.’s App., 81* Pa. 91; Borough of Mt. Joy v. Lancaster, Elizabethtown & Mid-dletown Turnpike Co., 182 Pa. 581; Quinn v. Cumberland County; 162 Pa. 55; Road in West Donegal Twp., 13 Pa. Dist. Rep. 88; Sanders v. Cambria County, 16 Pa. C. C. Rep. 94; Com. v. Hudusko, 10 Pa. Dist. Rep. 230; In re Road in Borough of Phoenixville, 109 Pa. 44; Com. v. Sam-uels, 163 Pa. 283; Com. v. Walsh, 11 Pa. Dist. Rep. 748; State v. Mitchell, 17 Mont. 67 (42 Pac. Repr. 100); Hearn v. Louttit, 42 Ore. 572 (72 Pac. Repr. 132); New York & Greenwood Lake Ry. Co. v. Township of Mont Clair, 47 N. J. Eq. 591; State v. Looker, 54 Kan. 227 (38 Pac. Repr. 288); People v. Hills, 35 N. Y. 449; Mankin v. Pennsylvania Co., 160 Ind. 447 (67 N. E. Repr. 229); Mayor, etc., of New York v. The Manhattan Ry. Co., 143 N. Y. 1 (37 N. E. Repr. 494); Weis v. Ashley, 59 Neb. 494 (81 N. W. Repr. 318).
   Opinion by

Mr. Justice Mesteezat,

By its charter the plaintiff company is authorized to do business as a trust and life insurance company. In 1908 the company paid a state tax of five mills on its capital stock, appraised for the purpose at $12,700,000, a four mill tax on certain securities held in trust, aggregating $10,799,707, and also a tax on its gross premiums. Under protest the company made a return of bonds, mortgages and other securities aggregating $45,010,962.45, which it alleged and the court below found were owned by it in its own right and, therefore, not subject to taxation. The defendants claimed that these securities were taxable, and thereupon this bill was filed by the plaintiff to restrain the defendants from assessing and collecting the tax.

The question raised in this proceeding was decided, under like facts, in 1905 against the contention of the defendants, this court holding in Provident Life & Trust Co. v. Durham, 212 Pa. 68, that the securities in question were not taxable. That decision was followed by the court below in the present case, and it held that the securities were exempt from taxation. It is conceded by the appellants that the decree of the court below is right under our former decision, and that the securities are not taxable unless they are made so by the Act of June 7, 1907, P. L. 430. The appellee company, however, contends (a) that the statute has not changed its liability from what it was when this court passed uppn the question before, and (b) that the act of 1907 is unconstitutional and void. These are the objections relied on by the appellee to prevent the taxation of the securities in question.

We are of the opinion that the act of 1907 cannot be sustained, and that this court having settled the law against the claim of the appellants in the former case, the decree below in the present case must be affirmed.

It is claimed on the part of the appellee company that the act of 1907 violates art. Ill, sec. 3, of the constitution which provides as follows: “No bill, except general appropriation bills, shall be passed containing more than one subject, which shall be clearly expressed in its title.”

The language of this provision of the present constitution is substantially the same as the amendment of 1864 to the prior constitution. In construing the amendment this court in Dorsey’s App., 72 Pa. 192, said (p. 195): “Another purpose (of the amendment) was to give information to the members or others interested, by the title of the bill, of the contemplated legislation, and thereby prevent the passage of unknown and alien subjects, which might be coiled up in the folds of the bill. The amendment was found necessary to correct the evils of unwise, improvident and corrupt legislation, and therefore is to receive an interpretation to effectuate its true purpose.” The court further said in the same opinion: “The title should be so certain as not to mislead. The language of the amendment is ‘one subject which shall be clearly expressed in the title.’ To be ‘clearly expressed’ certainly does not mean something which is dubious, and therefore is not clearly expressed.” In declaring an act of the legislature unconstitutional by reason of its title being defective within the meaning of art. Ill, sec. 3, of the present constitution, Mr. Justice Williams in delivering the opinion in Davey v. Ruffell, 162 Pa. 443, said (p. 447): “Since the adoption of the constitutional provision that requires that every bill shall relate to but one subject and that subject shall be clearly expressed in its title, the title alone should disclose the legislative purpose.”- In noting the distinction between the title to an original act and that of a supplement, Mr. Justice Clark delivering the opinion in Philadelphia v. Railway Co., 142 Pa. 484, said (p. 491): “When an act of assembly is a supplement to a former act, if the subject of the original act is sufficiently expressed in its title, and the provisions of the supplement are germane to the subject of the original, the general rule is that the subject of the supplement is covered by a title which contains a specific reference to the original by its title, giving the date of its approval, and declaring it to be a supplement thereto.” In Mt. Joy Borough v. Lancaster, etc., Turnpike Co., 182 Pa. 581, Chief Justice Stert rett delivering the opinion, said (p. 584): “As was said by this court in Phoenixville Road, 109 Pa. 44, ‘while it may be difficult to formulate a rule by which to determine the extent to which the title of a bill must specialize its objects, it may be safely assumed that the title must not only embrace the subject of proposed legislation, but also express the same so clearly and fully as to give notice of the legislative purpose to those who may be specially interested therein. Unless it does this it is useless.’ The decisions relating to the titles of supplemental legislation do not depart from the foregoing rule. They can be sustained only on the ground that they give notice of the legislative purpose, to those specially interested, by reference to the original act.” Mr. Justice Agnew, in discussing the constitutionality of a supplemental act in Union Passenger Ry. Co.’s App., 81* Pa. 91, said (p. 94): “The title to a bill which tends to mislead stands upon a different footing from one which is merely general in its terms. ... In such a case the subject is not clearly expressed in the title. Indeed it is not expressed at all. ... If it be said the legislature might have meant this, the obvious answer is, that this is a mere possibility, a conjecture; not a clear expression of the intent. Nothing ambiguous can be said to be clear, and this is a decisive answer to the argument that the title is sufficient to lead to inquiry. An inquiry into a dubious or uncertain thing is not the purpose of the amendment (of 1864). Its requirement is that the subject shall be clearly expressed. This word clearly is not in the constitutions of some of the states whose judicial decisions have been cited. Its bearing on the clause cannot be ignored.”

These authorities indicate the purpose and the proper interpretation of the constitutional provision in question as understood in this state. So far as the writer is advised, the word “clearly” in this connection is omitted from the constitutions of most of the other states of the Union. The decisions in those states, therefore, cannot be relied upon as precedents in determining the construction of our constitutional provision. As said by Judge Cooley (Const. Lim., 7th ed., 205): “One of the purposes of the provision was to prevent hodge-podge or Tog rolling’ legislation which had become prevalent in most if not all the states of the Union.” Our state was not an exception, and “omnibus bills,” containing almost everything except what the title indicated, brought about the constitutional amendment of 1864. These evils which had crept into the legislation of the state could only be eradicated by drastic measures, and hence the plain and unequivocal language of the amendment of 1864 and of the present constitution, which declares that the bill shall contain but one subject which shall be clearly expressed in its title. It was not the intention to interfere with or prevent the legislature from freely enacting proper legislation, but the purpose was to prevent fraud and deception by requiring the title of the bill to disclose fully and clearly its subject so that all interested parties could be heard for. and against the proposed legislation if they desired. It was not the title to an act, as will be observed, which the constitutional provision requires to be clearly expressed, but the title to the bill. No bill shall be passed, says the constitution, unless the subject is clearly expressed in the title. If, therefore, the title is defective it cannot be cured by the subsequent enactment of the bill into a law by its being passed by the legislature and approved by the governor. In passing upon the adequacy or sufficiency of the title it must be done regardless of the subsequent enactment of the bill into a law. We cannot look beyond the title and into the body of the bill to determine the validity of the legislation. The title must speak for itself and clearly declare the legislative purpose. The investigator has the right to rely solely on the title without scrutinizing the body of the bill for information as to the subject of the proposed legislation. The constitution requires that notice of the subject shall be contained in the title itself: Com. v. Samuels, 163 Pa. 283, 287; Dailey v. Potter County, 203 Pa. 593, 598. If the title is defective in that it contains more than one subject or only one subject which is not clearly expressed, the law which results from the passage of the bill contravenes the constitution and is void.

In the light of these well settled principles let us examine the title to the act of June 7, 1907. It reads as follows: “An act to further amend section twenty-one of an Act entitled 'An Act to provide revenue by taxation’ approved June twenty-seventh, one thousand eight hundred and seventy-nine.”

By reference to the pamphlet laws for the year 1879 it appears that no acts of assembly were approved on, June 27 of that year. It is manifest, therefore, that the act of 1907 did not and could not amend an act approved on that date. There was an act entitled “An act to provide revenue by taxation” approved June 7, 1879, P. L. 112, but it contained only eighteen sections, and hence the act of 1907, purporting to amend sec. 21 of a statute, did not refer to or amend the act of 1879. This act does not refer to relief from taxation of securities owned by corporations in their own right. There was also an act entitled “An act to provide revenue by taxation” approved July 15, 1897, P. L. 292, but there are only three sections in it, and therefore there is no twenty-first section to be amended. The act deals with banks and savings institutions, and -companies or individuals engaged in the express business, and is still in force and the taxes provided for therein are collected. At least these two acts have the same title, to wit: “An act to provide revenue by taxation,” and there are possibly many other acts with the same title, and aside from the dates of these acts, the title of the act of 1907 would apply to either of them. It is apparent that if the date of the approval of the act to be amended by the act of 1907 be disregarded, as it must be, and the act to be amended be treated as simply “an act to provide revenue by taxation,” the title would then apply to either the act of 1879 or 1897, or to any other act with the same title. There is nothing in the title of the act of 1907 to show what “act to provide revenue by taxation” the act of 1907 seeks to amend. The subject of the act is, therefore, not only not clearly expressed in the title but is not expressed at all. The title of an amendatory act entirely fails to express the subject, when the act to be amended is not disclosed in some clear and defined manner.

The act of June 7, 1879, was supplemented but not amended by the Acts of June 10, 1881, P. L. 99, June 30, 1885, P. L. 193, and June 1, 1889, P. L. 420. None of the sections of the act of 1879 are now in force. While some of these supplemental acts deal with the subject-matter • of the body of the act of 1907, it is not suggested that the latter act is amendatory of either of these acts.

The Act of June 8, 1893, P. L. 353, has one section, and as appears by the title, it is supplemental to the act of June 7, 1879, and amends the amendment of the supplement thereto approved June 1, 1889, which amendment therein amended was approved June 8, 1891, P. L. 229, “relating to the tax on capital stock.” This act of 1891 has eight sections and amends the twenty-first section of the act of June 1, 1889, and repeals all acts inconsistent therewith or supplied thereby.

The title and the body of the act of 1907 refer to sec. 21 of the act of June 27, 1879, as the act to be amended, while the marginal note to the act of 1907 inserted by the statute clerk shows the section and the act to be amended to be “Section 21, act June 8, 1893;” and it is claimed by the appellants that the act of 1893 was intended to be amended by the act of 1907. As noted above, the act of 1893 has but one section and it cites sec. 21 of the amended act of June 1, 1889, for amendment. The title of the act of 1907 is: “An act to further amend section twenty-one of an act entitled 'An act to provide revenue by taxation/ approved June twenty-seventh, one thousand eight hundred and seventy-nine.” What is there in the title of the bill which became the act of 1907 to show that the act of 1893 was the subject of legislation in the amendatory act, or to direct attention to the act of 1893 as the act to be further amended? Certainly it is not, as the title declares, that the act is “to further amend” the act of 1879, as that act has never been amended, and it is equally certain that the date of approval of the act to be amended given in the title gives no assistance in ascertaining the act sought to be amended. Neither is the act of 1893 nor any other act referred to in terms in the title. It is manifest, we think, that there is nothing whatever in the title of the act of 1907 that directs attention to the act of 1893, which its title declares to be an act “relating to the tax on capital stock,” as the act to be amended. The act of 1907, as disclosed by the title or body, does not make any change in taxing the capital stock of corporations. Its purpose was to amend the existing law relating to taxing bonds, mortgages, and other securities. The only possible way in which the act of 1893 could be identified as the one to be amended by the act of 1907 would be to search the pamphlet laws from 1879 to 1893 and compare the body of the amendatory act with the other legislation enacted during those fourteen years. This is what the statute clerk in the office of the secretary of the commonwealth did when he tried to find the act proposed to be amended in order to insert the citation in the marginal note, and he testified that he “had a great deal of difficulty” in finding it. It is scarcely necessary to suggest that when such an investigation is required to find the subject of a bill, the constitutional mandate that it be “clearly expressed” in the title is not complied with. Such a title would not enable the investigator to find the subject before the bill became a law. If the titles to all bills introduced in the legislature were as obscure and wanting in clearness as to the subject-matter of the intended legislation as the title of the act of 1907, the constitutional provision would be a nullity and the legislature would again be given the free hand it had prior to the amendment of 1864.

It is suggested that the marginal note to the act of 1907 in the pamphlet laws possesses curative powers and relieves the otherwise defective legislation of its constitutional infirmities. The note is on the margin of page 430 of the pamphlet laws of 1907 and reads: “Section 21, act of June 8, 1893, cited for amendment.” We know of no law authorizing the secretary of the commonwealth or his statute clerk to insert in the pamphlet laws this or any similar note as a part of the act in question. The secretary is required to publish the acts of assembly as they appear by the original rolls, but he has no authority to add any explanatory matter to an act by marginal note or otherwise in the published laws. Neither the constitution nor the laws of the commonwealth confer any such legislative authority on the secretary. Notes of this character greatly aid in an examination of the acts, of assembly, and for such purpose are properly inserted in the pamphlet laws.

The contention that the marginal note to an act can have any relevancy in determining the sufficiency of the title of a bill overlooks entirely the language and the purpose of the constitutional provision. It provides that “no bill .... shall be passed containing- more than one subject which shall be clearly expressed in its title.” The purpose of the provision, as all our cases declare, is to give information in the title of the bill to the members of the legislature or other interested parties of the contemplated legislation. How can a marginal note in the pamphlet laws published after the enactment of the statute “give information of the contemplated legislation?” The constitutional mandate is that the bill, before and not after it becomes a law, shall contain but one subject which shall be clearly expressed in the title. An act of assembly is void because the title to the bill which by legislative sanction becomes a law offends the constitutional provision. It is apparent, therefore, that an explanatory marginal note in the pamphlet laws, and especially one that incorrectly cites the section of the act to be amended, cannot aid the title of a bill otherwise constitutionally defective.

We have cited above our cases announcing the general principles applicable in the construction of this constitutional provision. As already observed, the provision is more pronounced than that of most of the other states in its requirement that the subject of a bill shall be clearly expressed in the title, and hence decisions on the subject in other jurisdictions cannot be regarded as authority in construing this provision of our constitution. The similar provisions in the constitutions of New Jersey, Indiana, Texas, Oregon and Michigan, whose decisions are cited by the appellants, do not contain the word “clearly” which is in our constitution and to which Mr. Justice Agnew, in Dorsey’s App., 72 Pa. 192, attaches an important and controlling effect. The cases in this state more nearly analogous to the present one are House of Refuge v. Luzerne County, 215 Pa. 429, and Com. v. Schulte, 26 Pa. Superior Ct. 95.

We think the title of the act of 1907 is misleading and also defective in that it fails to clearly express the subject of the legislation, and for this reason the decree of the court below is affirmed.


author: Mr. Justice Elkin,

text:
    Brinton v. Pennsylvania Railroad Company, Appellant.

      Deeds — Boundaries—Actual occupancy — Ejectment—Evidence.
    1. In an action of ejectment against a railroad company to recover possession of a lot of ground alleged to have reverted to the grantor of the railroad company and his heirs, for condition broken in failing to maintain thereon a railroad station, where the establishment of the center line of the railroad’s original right of way is essential to an accurate location of the land to accord with the description in the deed, the plaintiffs may, in the absence of other proof, introduce the testimony of a surveyor locating such center line by measurement of the tracks upon the ground, in order to determine the extent of the actual occupancy.
    2. In such a case the evidence is ample to determine a description of the property, where in addition to the testimony of the surveyor, another witness for the plaintiff testifies that he was fifty-three years old at the time of the trial, was familiar with the land described in the writ from his youth up, knew that a station had been erected thereon, that such station had been used for railroad purposes for many years, that it had been removed in a year which he stated, and that he had recently gone upon the ground and located a stone wall referred to by the surveyor as being on the land.
    Submitted Jan. 3, 1911.
    Appeal, No. 7, Oct. T., 1911, by defendant, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1907, No. 497, on verdict for plaintiffs in case of George M. Brinton et al. v. Pennsylvania Railroad Company.
    February 27, 1911:
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Ejectment for land in the borough of East Pittsburg. Before Evans, J.
    At the trial the court permitted under objection and exception, a witness for the plaintiff who was a surveyor, to testify as to the location of the center line of the railroad from measurements of the tracks upon the ground. [1] The same witness was also permitted to testify under objection and exception as to the location of a small wall at one end of the land. [2]
    The material facts of the case are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiffs for the land described in the writ and six and one-fourth cents damages and costs. Defendant appealed.

      Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions and (4) in refusing binding instructions for defendant.

      Patterson, Sterrett & Acheson and James R. Miller, for appellant.

      George W. Herriott, A. T. Morgan, and Geo. W. Flowers, for appellees.
   Opinion by

Mr. Justice Elkin,

This is an action of ejectment brought by the heirs of George M. Brinton, deceased, to recover the possession of a certain lot of ground conveyed to appellant company in 1853 upon the condition that it was to be used for railroad purposes, and in the event of the railroad company removing the station from the premises, the title should revert to the grantor, his heirs and assigns. The case was submitted to thé jury and a verdict returned in favor of appellees. There can be no doubt that the case was for the jury and the questions for consideration here are the sufficiency of the evidence to sustain the verdict and whether there was any error in the admission of testimony at the time of the trial. An examination of the testimony satisfies us that it was ample to sustain every material fact necessary to show title in the appel-lees. The deed to the railroad company in terms provided that the title should revert to the grantor, his heirs or assigns, if the station should be removed from the premises. The testimony showed that a station had been erected on the land, had been removed therefrom, and that it is not now being used for station purposes. These facts are not seriously controverted and it necessarily follows that when the condition was broken the title reverted according to the terms of the grant. It is contended, however, that the testimony was not sufficient to accurately describe the land to which the condition applied. Three of the assignments of error relate to the testimony of the engineer, Taylor, called as a witness by the plaintiffs. These assignments are technical and under the facts without substantial merit. It is argued that this engineer who made a survey of the property, failed to definitely locate the center line of the railroad on the ground, and this being the starting point upon which the description in the deed depends, his testimony is without value and should have been refused. The witness from his notes of survey located the center line of the land now used by the defendant company as its right of way and showed that the starting point of his survey was thirty-four and four-tenths feet from the present center line of the right of way and the western end of the land described in the writ was thirty-eight and two-tenths feet from said present center line. He was unable to find any deeds, plots or other evidence of record, or monuments on the ground, showing the location of the right of way and was compelled to locate the center line by measurements of the tracks upon the ground. There was no error in the admission of his testimony showing the manner in which he located the center line of the right of way. It was held in Zahn v. Railway Co., 184 Pa. 66, that when no monuments on the ground erected at the date of entry have survived to now locate the extent of the original taking, and no surveys on record or elsewhere serve to define the boundaries, they must be determined by the extent of the actual occupancy. Again, in Bassett v. R. R. Co., 201 Pa. 226, it was held that in such an action the plan made by an engineer from his notes of survey showing the center line thus determined was properly admitted in evidence. It was there held, and very properly so, that the accuracy of the data and of the plans, submitted by an engineer, like his credibility as a witness, is for the jury. As to the location of the land in dispute the testimony of the surveyor was supplemented by George M. Brinton, a son of the original grantor who was fifty-three years old at the time of the trial, and who had been familiar with the land described in the writ from his youth up. He testified as to the location of the lot, the erection of a station house thereon, the use made of it for railroad purposes for many years, the removal of the station about the year 1888, and, finally, that he had recently gone upon the ground and located the stone wall described by the engineer Taylor. How can it be said in view of testimony of this character that the case should have been taken away from the jury' by giving binding instructions for defendant. The evidence was ample to determine a description of the prop» erty and there was no error in its submission.

Judgment affirmed.


author: Mr. Justice Moschzisker,

text:
    Elliott v. Diamond Coal & Coke Company, Appellant.

      Will — Construction—Devise—Fee simple estate — Estate for life.

    Testator directed as follows: “I give devise and bequeath to my daughter .... [a farm] .... to have and to hold unto my said daughter and her children forever. I also devise and bequeath to my daughter .... [another farm] .... to have and to hold unto my said daughter and her children forever. I also give to my daughter three hundred and fifty dollars in money.” He further devised farms to three of his sons, using in each instance the phraseology: “I give, devise and bequeath to my son .... to have and to hold unto my said son, his heirs and assigns forever.” Held, that the daughter did not take an estate in fee simple, but only an estate for life with remainder in fee to her children as a class.
    Submitted Jan. 3, 1911.
    Appeal, No. 17, Oct, T., 1911, by defendant, from order of C. P. Washington Co., Nov. T., 1910, No. 78, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Ruth J. Elliott v. Diamond Coal & Coke Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Assumpsit to recover the price of coal land.
    Rule for judgment for want of a sufficient affidavit of defense.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.

      Geo. M. & M. J. Hosack, for appellant.
    We contend that the provisions of the devise are inconsistent, that the first expression, standing alone, gives to Ruth J. Elliott the farm absolutely, but that the habendum restricts the gift so as to make her a tenant in common with her children. Where the clauses in the will are inconsistent, the true construction would be that the last expression shall govern: Robinson v. Martin, 2 Yeates, 525; Lewis’s Est., 3 Whart. 162; Geiger’s App., 24 W. N. C. 264; Drinker’s Est., 8 W. NT. C. 255; German v. German, 27 Pa. 116; France’s Est., 75 Pa. 220.
    February 27, 1911:
    The word “children” is a word of purchase, and not of limitation, and describes the persons who take: Crawford v. Forest Oil Co., 208 Pa. 5; King v. Savage Brick Co., 30 Pa. Superior Ct. 582; Oyster v. Oyster, 100 Pa. 538.

      Andrew M. Linn, for appellee.
    The daughter took a fee simple estate: Tyson’s Est., 191 Pa. 218; Smith’s App., 23 Pa. 9; Mickley’s App., 92 Pa. 514; Lewis’s Est., 3 Wharton, 162; Geiger’s App., 24 W. N. C. 264; Rober-jot v. Mazurie, 14 S. & R. 42.
   Opinion by

Mr. Justice Moschzisker,

This appeal involves the construction of item 4 of the will of Thomas Lilley: “I give devise and bequeath to my daughter Ruth J. Elliott .... [a farm] .... to have and to hold unto my said daughter and her children forever. I also devise and bequeath to my daughter .... [another farm] .... to have and to hold unto my said daughter and her children forever. I also give to my daughter three hundred and fifty dollars in money.”

The first phrase, “I give devise and bequeath to my daughter,” standing alone, might be construed as an absolute gift in fee, but with only the subject of the devise intervening, it is immediately followed in the same sentence by the words, “to have and to hold unto my said daughter and her children forever.” The two phrases are parts of the expression of a single idea, and must be read and construed as though the testator had said, “I devise the farm to my daughter and her children forever.” On the facts in this case, such a devise, under the prevailing rules of construction in Pennsylvania, is a gift of a life estate to the mother with remainder in fee to the children as a class: Hague v. Hague, 161 Pa. 643; Estate of Mary Catherine Vaughan, 230 Pa. 554. The authorities are collated in Hague v. Hague, supra.

Here, the daughter had children in being at the time of the making of the will, and her husband also was alive. In phrasing the item under consideration, it may well have been the intent of the testator to protect the interests of these grandchildren and to guard against the possibility of his son-in-law’s holding the entire real estate therein disposed of as tenant by the curtesy. When we look at the will from its four corners it bears out the thought that the testator did not intend to vest the fee in his daughter. In the items preceding the one in question he devises farms to three of his sons, using in each instance the following language: “I give devise and bequeath to my son .... to have and to hold unto my said son, his heirs and assigns forever,” thus showing knowledge of correct technical words for the creation of a fee. Therefore the change of phraseology in item 4 has significance as some evidence of a different intent concerning the disposition of the property then in mind.

The last clause, “I also give to my daughter three hundred & fifty dollars in money,” should have no controlling effect in construing the preceding devises in the item, since it is entirely distinct from all that goes before. “The word, 'also,’ which is prefixed to the sentence, serves, as it most frequently does in wills, to point out the beginning of a new devise or new bequest:” Evans v. Knorr, 4 Rawle, 66. We conclude that the learned court below fell into error in determining that the testator devised the farm in question to Ruth J. Elliott in fee simple.

The assignment of error is sustained and the judgment is reversed with a procedendo.


author: Mr. Justice Potter,

text:
    Sheaffer’s Estate.

      Trusts and trustees — Executors and administrators — Orphans’ court— Jurisdiction — Married women.

    1. Where a feme covert has taken into her own hands assets of a trust estate required for the execution of a trust constituted for her benefit by the will of her father, the orphans’ court has jurisdiction to compel her to restore the assets thus wrongfully derived to the trustee entitled to the custody thereof.
    2. An administrator d. b. n. c. t. a. has no power to execute a trust reposed in executors under a will, not connected with the office of executor, but reposed in them as trustees.
    Argued Oct. 26, 1910.
    Appeal, No. 137, Oct. T., 1910, by Annie R. Phillipi, from decree of O. C. Allegheny Co., Feb. T., 1910, No. 176, directing the conveyance of real estate and the payment of money in Estate of William Sheaffer, deceased.
    Before Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Petition to compel restoration of assets alleged to have been transferred in breach of trust. Before Hawkins, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was the decree directing the conveyance of real estate and the payment of money.

      H. Fred Mercer, for appellant.
    The petition is a bill of ejectment: Long’s App., 92 Pa. 171; Richard’s App., 100 Pa. 51; Odd Fellows’ Bank’s App., 123 Pa. 356; Duncan v. Iron Works, 136 Pa. 478; Ferguson’s App., 117 Pa. 426.
    The orphans’ court had no jurisdiction to determine the disputed title: Spencer’s Est., 227 Pa. 469; Goodwin v. Colwell, 213 Pa. 614.

      Thomas P. Trimble, with him Edward C. Chalfant, for appellee.
    The court had jurisdiction: Tyson’s App., 191 Pa. 218; Barklay’s Est., 10 Pa. 387; Kittera’s Est., 17 Pa. 416; Cutler’s Est., 225 Pa. 167; Paxson’s Est., 225 Pa. 204; Shollenberger’s App., 21 Pa. 337; Bell’s App., 71 Pa. 465; Mulholland’s Est., 154 Pa. 491; Watt’s Est., 158 Pa. 1; Getts’s Petition, 2 Ashmead, 441; Mussle-man’s App., 65 Pa. 480; Brooke’s App., 102 Pa. 150.
    February 27, 1911:
   Opinion by

Mr. Justice Potter,

In this appeal, counsel for Mrs. Annie R. Phillipi, contend that the orphans’ court erred in its decree directing her to convey certain real estate to the administrator d. b. n. c. t. a. of her father’s estate, and in requiring her to pay to him the proceeds of a certain mortgage, which it was alleged had been transferred to her from the estate, without consideration. It appears from the record that William Sheaffer died December 28, 1905, leaving a will in which his son George and his wife Catherine were appointed executor and executrix. The will was probated January 4, 1906, and letters testamentary issued the same day. To the widow, Catherine Sheaffer, was given the income of the estate for her life, and she and George Sheaffer were made trustees with power to sell or lease the real estate, and dispose of the personal property, at their discretion, and to reinvest the funds. The testator provided that if at the death of his wife, Catherine Sheaffer, his son William Sheaffer should then be living, the sum of $12,000 should be given to George Sheaffer in trust, to pay the net income therefrom to William Sheaffer, during the term of his natural life, and at his death the principal to be divided among the other children of the testator living at such time. The residue of his estate he gave to his sons George and Harry, and to his daughter Annie Phillipi, their heirs and assigns forever. But he directed that the share of his daughter should be held in trust by his son George, as long as she remained the wife of Benton Phillipi. Full control of the trust fund was given to the trustee, George Sheaffer, to reinvest it, and collect the income and pay it over for the use and benefit of William Sheaffer, Jr., and for Annie Phillipi. If the daughter survives her husband, or is legally separated from him, the trust for her benefit is to terminate, and the fund vest in her absolutely. Should she die without issue living at her death, the fund is to go to George and Harry Sheaffer, and their heirs.

In the year 1907, George Sheaffer, and his mother Catherine Sheaffer, acting under the authority in the will, purchased a piece of real estate. This property was afterwards conveyed to one William Taylor, the father-in-law of George Sheaffer, for what purported to be a consideration of $24,000. On January 28, 1908, a quitclaim deed for this property was made to William Taylor, by George Sheaffer and Catherine Sheaffer, executors and trustees under the will of William Sheaffer, and as individuals, by George Sheaffer and his wife, Harry Sheaffer and his wife, and Annie Phillipi and her husband, Benton Phillipi. On March 5, 1908, a receipt was given to Annie Phillipi by George Sheaffer and Catherine Sheaf-fer, executors, for the sum of $5,000 in payment for a mortgage of that amount which was transferred to her, and which she subsequently satisfied of record.

William Taylor executed a mortgage for the sum of $10,000 upon the real estate which had been transferred to him, and afterwards conveyed the property to Annie Phillipi for the stated consideration of $24,000, being the same amount as that set forth in the deed to him. The court below found that in fact no consideration was paid by William Taylor for the property, and none was paid to him when he transferred it to Annie Phillipi. Part of the sum of $10,000 which was obtained by the execution of the mortgage by William Taylor was used to discharge a prior mortgage of $4,800, assumed in the purchase of the property, and the balance was used in the payment of the contractors, for the building of á house upon the lot.

It appears from the petition that Catherine Sheaffer, executrix and trustee as aforesaid, died on January 31, 1909; and that George Sheaffer, the sole surviving trustee under the will of William Sheaffer, presented his petition to the orphans’ court asking to be discharged from further duties as executor and trustee; and on March 20, 1909, he was discharged by the court, and the Commonwealth Trust Company was appointed administrator d. b. n. c. t. a. of the estate of William Sheaffer. It appears also from the answer, that,on September 22, 1909, the Dollar Savings Fund & Trust Company was appointed by the orphans’ court to act as trustee of the estates of the son, William Sheaffer, and of the daughter, Annie Phillipi, under the will of William Sheaffer, deceased. The petition in this case was then filed by the administrator d. b. n. c. t. a. praying that the said Annie Phillipi be compelled to reconvey the property which had been deeded to her, and to pay over the proceeds of the mortgage which had been transferred to her. To this petition Mrs. Phillipi filed an answer setting forth that she had paid a consideration for the property, and that the remainder-men having joined in the deed to her, the trust was at an end. The orphans’ court made a decree ordering restitution of the property on the ground that no consideration was paid for it, and the conveyance was a diversion of assets in breach of a trust.

As to the separate use trust created by the will of William Sheaffer for the benefit of Annie R. Phillipi, that could not be set aside or affected by any conveyance, or agreement, or act of herself and her husband. In MacConnell v. Lindsay, 131 Pa. 476, Mr. Justice Clark said (p. 486): “The rule is now well settled that neither the feme-covert, nor her husband, nor both together, have any powers over her separate estate, except what are given by the trust instrument, and that even these must be strictly construed.”

In Holliday v. Hively, 198 Pa. 335, Mr. Justice Brown said (p. 341): “If anything in the law may be regarded as settled, it is that a feme-covert, as to her separate estate, has no power of disposition beyond what is conferred upon her in the instrument creating the trust.”

The fact that the property in question which was taken into her own hands by Mrs. Phillipi, belonged to the estate of her father, and is assets for the execution of the trusts constituted by his will, is sufficient to confer jurisdiction upon the orphans’ court to compel her to surrender it to the trustee entitled to its custody. But that trustee would seem to be the Dollar Savings Fund & Trust Company, and not the petitioner in this case, the administrator d. b. n. c. t. a. of the father’s estate. The latter would have no right of action, unless the money was required for the payment of the testator’s debts. The testimony is very meager, and does not seem to show any debts of the decedent remaining unpaid, which would be a charge on this fund. The evidence of Mr. Stengel shows indebtedness apparently contracted by the former executor and trustee upon account of building operations, and secured for the most part by mechanics’ liens. And that trustee was surcharged in a large amount*.

The trust fund for William Sheaffer, Jr., was to be $12,000, and that for Mrs. Phillipi one-third of the residue of the estate. The amount of the residue does not appear, even approximately, from either the bill and answer or the evidence. The testimony showed that the estate had a decree against George Sheaffer for $32,498.43. It does not appear whether this is collectible or not; but, as George Sheaffer is entitled to one-third of the residue, as well as a remainder interest in the fund to be held for the benefit of William Sheaffer, Jr., it would seem probable that at least a part of the award can be collected from him. The estate also owns other real estate, as appears from the testimony; but the value of such real estate was not shown. Mr. Stengel testified: “[It] is very difficult to say what the assets amount to; it depends on what this real estate is worth; the assets of the estate amount to much more than thé indebtedness.”

There is no other evidence as to either the liabilities or the property of the estate.. We do not regard this testimony as sufficient to justify the decree of the court below directing the conveyance of the real estate to the administrator d. b. n. c. t. a. and the payment to it of the proceeds of the mortgage.

An administrator d. b. n. c. t. a. has no power to execute a trust reposed in executors under a will, not connected with the office of executor, but reposed in them as trustees: Ebert’s App., 9 Watts, 300; Ross v. Barclay, 18 Pa. 179; Gehr v. McDowell, 206 Pa. 100. If in this case the return of the property by Mrs. Phillipi was necessary in order to pay debts of the estate, that fact should have been shown affirmatively and clearly.

As the record in this case now stands, we are of opinion that the decree should require Mrs. Annie Phillipi to restore the property in question to the trustee appointed to protect the estate of Mrs. Phillipi and of her brother William Sheaffer; and not to the administrator d. b. n. c. t. a. of the father.

With that modification, the decree of the orphans’ court is affirmed.


author: Mr. Chief Justice Fell,

text:
    Commonwealth v. Burke, Appellant.

      Criminal law — Murder—Evidence.
    On the trial of an indictment for murder the evidence for the commonwealth tended to show that prior to the killing the accused armed himself with a loaded shot gun, went to the deceased’s house about half a mile away, with the avowed purpose of compelling him to receipt a bill; that the prisoner pointed the gun at the deceased, told him to sign the receipt, and threatened to shoot him if he moved from where he stood; that the deceased’s wife brought a pen to her husband, and as he was leaning forward to sign the receipt the gun was discharged, the load striking the deceased in the abdomen. The prisoner testified that he heard a noise on the porch where the parties were, and while turning to see what caused it, the gun was discharged accidentally. The court charged in part as follows: “ Something has been said to you about where it would have struck him if he held the gun at the shoulder or carried it below. I do not see that it is so material, although it might to a certain extent help you in determining whether or not there was the deliberate, premeditated and willful intent to take this man’s life.” Held, that the feature of the defense indicated in this portion of the charge was adequately presented.
    February 27, 1911:
    Argued Jan. 3, 1910.
    Appeal, No. 345, Jan. T., 1910, by defendant, from judgment of O. and T. Chester Co., August Sessions, 1910, on verdict of murder in the first degree in case of Commonwealth v. William P. Burke.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Indictment for murder. Before Hemphill, P. J., and Butler, J.
    At the trial the jury returned a verdict of guilty of murder of the first degree upon which judgment of sentence was passed.

      Error assigned among others was the portion of the charge quoted in the opinion of the Supreme Court.

      J. Frank E. Hause, with him John J. Gheen, for appellant.

      Robert S. Gawthrop, district attorney, for appellee.
   Opinion by

Mr. Chief Justice Fell,

The appellant inherited a small farm from his aunt and in the settlement of her estate a dispute arose between him and his neighbor, John McNamara, who had presented a bill for a few dollars against the estate. The appellant armed himself with a double-barrelled shotgun, loaded with buckshot and went to McNamara’s house, half a mile distant from his own, for the avowed purpose of compelling him to receipt the bill. There were three accounts of what took place when he met McNamara. The commonwealth’s witnesses testified that the appellant pointed the gun at him, told him to sign the receipt and threatened to shoot him if he moved from where he stood; that his wife, at his request, brought a pen and ink to the end of the porch where the men were standing and that as he was leaning forward to sign the receipt, the gun was discharged. According to the ante-mortem statement of McNamara, the appellant demanded the signing of the receipt and the payment of $13.00 claimed to be due the estate, and that he, fearing he would be shot, yielded to the demand and was shot as he started to go into his home to get the money. The appellant testified that he heard a noise on the porch and while turning to see what caused it, the gun was discharged accidentally.

It is conceded in the argument on behalf of the appellant, that he went to McNamara’s house with the intention of killing the latter if he refused to receipt the bill. But it is argued that the defense of accidental shooting was supported by the fact that McNamara had consented to sign the receipt and there was therefore no motive for killing him and by the fact that the wound was in the upper part of the abdomen and it would have been in the shoulder if the gun had been held in the position described by the commonwealth’s witnesses and that this feature of the defense was not adequately presented by the charge.

The part of the charge assigned as error is “Something has been said to you about where it would have struck him if he had held the gun at the shoulder or carried it below. I do not see that it is so material; although it might to a certain extent help you in determining whether or not there was the deliberate, premeditated and willful intent to take this man’s life.” This was said in immediate connection with the distinct instruction that if there was no intent to take life and the gun was accidentally discharged as the appellant turned because of something occurring on the porch, that he should be acquitted. It had reference to the argument to the jury on the appellant’s behalf, that the witnesses for the commonwealth were mistaken in saying that the gun was held at the appellant’s shoulder and levelled at McNamara. The location of the wound, as indicating intent to kill, was important only, as stated by the court, in determining whether the shooting was accidental.

The charge contained a very clear and accurate statement of the law and did full justice to the appellant. The judgment is affirmed and it is directed that the record be remitted for the purpose of execution.