author: Mb. Justice Potteb, Mb. Chief Justice Mitcheul,

text:
    Jones’s Estate.

      Wills—Legacies—Revocation—Subsequent divorce—Divorce.

    A legacy in the words, “one-third to my wife Mary Brown Jones” does not lapse, although the wife subsequently to the date of the will, at her own instance, obtains a divorce a vinculo matrimonii. In such a case the word “wife” is descriptive only, and does not import a condition that the beneficiary shall remain testator’s wife. The Act of June 4, 1879, P. L. 88, which provides that a will is to be construed as of the death “with reference to any real or personal estate embraced in it,” does not apply, inasmuch as the act has no application to beneficiaries and their condition. As to them the will speaks as of its date.
    A bequest “to my wife Mary Brown Jones” is not revoked by implication by reason of an absolute divorce subsequently procured by the wife at her own instance.
    Mitchell, C. J., dissents.
    Argued Jan. 31, 1905.
    Appeal, No. 169, Oct. T.,'1904, by Fidelity Title & Trust Co., guardian, from decree of O. C. Allegheny Co., March T., 1904, No. 91, dismissing exceptions to adjudication in estate of Thomas Mifflin Jones, Jr., deceased.
    Before Mitchell, C. J., Dean, Fell, Potter and Elkin, JJ.
    Affirmed.

      Audit of executor’s account.
    The account showed a balance for distribution of about $600,000.
    By a stipulation filed the following facts appeared:
    Thomas M. Jones, Jr., the decedent, on April 9, 1896, married Mary E. Brown (now Speer).
    One child, a son, Thomas M. Jones, 3d, was born to them, who has for a guardian the Fidelity Title & Trust Company.
    On February 6, 1900, Mary Brown Jones filed her libel in divorce against the said Thomas M. Jones, Jr. On September 19, 1900, the court entered its decree divorcing them.
    Thomas M. Jones, Jr., did not marry after the entry of the decree, and died on May 17, 1902.
    On October, 8, 1902, Mary Brown Jones married Charles E. Speer, Jr., and assumed the name of Mary Brown Speer.
    The will of Thomas M. Jones, Jr., dated April 24, 1899, probated May 29, 1902, is as follows:
    “I, Thomas Mifflin Jones, Jr., do make this my last will and testament, hereby revoking any and all wills heretofore made by me.
    “ I direct that my funeral expenses and all debts be promptly paid, that my estate be divided as follows, one-third to my wife Mary Brown Jones and the balance to my son Thomas Mifflin Jones. I appoint William C. Moreland, Jr., in whom I have great confidence, my executor, and direct that he shall receive the sum of five thousand dollars for his services,(and that he shall have reasonable time for the division of my estate.”
    The will was made two months after his wife had withdrawn from his house.
    The auditing judge, Miller, J., filed the following opinion :
    The question presented is new; careful research shows no adjudication by the Supreme Court of this state under the same conditions.
    Counsel for the guardian contend that, owing to the changed relations of the testator after his will was made, and the decree of divorce was entered against him, absolutely severing and making null and void the marriage relationship, that the law implies a revocation of his will as to this bequest; that the presumption is that he could not have intended the disposition of his property, made before his relations with his then wife were changed, to still continue after the relations by decree of absolute divorce were severed; that the bequest of one third of his estate was not to Mary Brown Jones as an individual only, but to Mary Brown Jones, his wife; that the bequest so made to her was by reason of the marriage relation.
    The contention of counsel for the claimant is that as to the identification of the beneficiary the will speaks from its date when the claimant was testator’s wife; that the word “wife ” identifies the beneficiary, but does not imply any condition; that the divorce did not render the legacy either void or lapsed; and that the lapse of time between the date of divorce and testator’s death, about twenty months, without changing the will is conclusive of his fixed intention to confer upon her the benefit given by the will.
    Implied revocation of wills is an ingrafted heritage from the common law; when the conditions after the making of the will produce a change in the testator’s previous obligations and duties, there may arise a reasonable presumption of a change of intention in his mind: 4 Kent’s Com. 54.
    The doctrine is stated and adopted in Young’s Appeal, 39 Pa. 115, as follows : “ If the testator’s circumstances be so altered that new moral testamentary duties have accrued to him subsequently to the date of the will, such as may be presumed to produce a change of intention, this will amount to an implied revocation. . . . This principle gives the .fundamental reason of all positive rules of law we have on the subject. . . . The positive rules are given sometimes by statute and sometimes bj^ judicial decision.”
    But the fact in this case involved air antenuptial settlement, and the subsequent birth of issue after date of the will. The revocation of the will under the facts does not apply here.
    Lansing v. Haynes, 95 Mich. 16 (54 N. W. Repr. 699) is the leading case apparently sustaining the guardian’s contention, and is worthy of extended notice. The parties were married in 1864; the wife obtained an absolute decree of divorce in 1889 ; the husband died in 1891; they executed mutual wills in 1881, identical in language, each devising all their property to the other. She by agreement became custodian of both wills until the divorce, when she destroyed hers and she retainecl his, which action was unknown to him. In 1889, pending the divorce suit, she and he made a division of his property, he conveying to her certain real estate, she releasing her interest in the remainder to him, at the same time an agreement was executed by them in which he conveyed to her certain personal property. She released him from all demand of every sort, agreeing to pay her own expenses in the divorce proceedings, it being stated in the above-recited agreement that it and the deeds recited were intended as a property settlement between them.
    After his death she probated his will and under it claimed the husband’s estate. Her claim was denied, the court saying, inter alia: “ The natural presumption arising from these changed relations is the reasonable one, and the one which in law implies a revocation. ... To hold the will unrevoked under these circumstances would be repugnant to that common sense and reason upon which the law is based.”
    The foregoing is one of the few adjudicated cases involving the effects of a divorce upon the precise, point at issue; but it differs from this that there had been a settlement of the property rights of the parties ; the court, after commenting on the effect of divorce and change of relation, saying: “ It is not, in my judgment, the natural presumption that after the testator had settled with her, had conveyed to her a good share of his property as well as their marital relations, the will executed nearly ten years before should remain in force and operate upon his death as a conveyance of the remainder of his property to her to the exclusion of his heirs.”
    Our statutes provide for the revocation of wills ; as to real estate by some other will or codicil in writing, or other writing declaring the same, by burning, canceling, obliterating or destroying the same ; as to personal estate in the same manner, except in addition by a noncupative will, made under the same circumstances, committed to writing in the lifetime of the testator, so read to and allowed by him; and by the marriage, subsequent tó the making of a will, of a man leaving a widow and child or widow or child or children ; and by the subsequent marriage of a single woman who had made her will. The statutes are silent as to the revocation of wills in any other .manner. The language that “ no will shall be revoked ” except as therein provided indicates a strong implication that any other revocation is prohibited.
    In Walker v. Hall, 34 Pa. 483, the court, after declaring the well-recognized rules of revocation, continues: “ It is clear, therefore, that all our rules in such cases are statutory, established by the legislature, by which the common law has been either repealed or altered or enforced by positive legislative sanction, and therefore not open to the doctrine of implied presumption.”
    In Heise v. Heise, 31 Pa. 246, is said : “ Yet under the 13th section, that which was once a perfect will must remain such unless repealed, altered or destroyed, in some one of the modes designated in the act. Those modes are exclusive of all others.” So also Dixon’s App., 55 Pa. 424.
    There is no doubt that as to the beneficiary intended this will speaks from its date : 2 Jarman on Wills, page 320; Gardner on Wills, page 432; Anshutz v. Miller, 81 Pa. 212; this person was Mary Brown Jones.
    The words “ my wife,” prefixed to the name, does not imply any condition: Theobald on Wills, page 210. Testator did not stipulate that she should continue to be his wife while he lived and his widow upon his death as a condition precedent. The name will prevail if there is a person fully answering to it, even though there be a description and no one answers to it. “ The mere fact that a gift is made to a named legatee in a certain character, as for instance my wife A,, does not avoid the legacy, if the legatee does not happen to fill the description ”: Theobald on Wills, page 214. In Bullock v. Zilley, 1 N. J. Equity, 489, testator directed interest to be paid to Thomas Bullock and Rebecca, his wife. They were divorced after testator died, held the word wife was descriptive, designating the person, and that Rebecca took under the will. Judge Pen-rose in Mellon’s Estate, 28 W. N. C. 120 : “We may conjecture, but we cannot be certain that the inducing cause of the provision for this claimant was that she was testator’s wife; we do know she is the individual in testator’s mind when the will was executed.”
    The case of Charlton v. Miller, 27 Ohio, 298, arose under the provisions of testator’s will bequeathing to “ my intended wife Elizabeth Jennings the sum of one thousand dollars, to be paid-to her by my executors one year after my decease.” The execution of the will was followed by the marriage of testator with the legatee; eight months thereafter she deserted him; five years later he obtained a divorce on the ground of such desertion, and he died five years after the divorce. Held in awarding the legacy to the claimant, that “ undoubtedly the contemplated marriage of the parties and a desire to make a provision for the plaintiff as - his wife, were the prompting causes of the will, but whether they were the only motives we cannot tell.....To defeat the bequest we must then not only add to the will conditions, that are neither expressed nor necessarily implied therein, but must rebut the presumption against any intent to revoke the will, arising from the testator’s acquiescence (for nearly five years after he was abandoned by his wife before he obtained a divorce).”
    In Sharpe’s Estate, 15 W. N. C. 419, testator created a trust for his son, he to receive the interest during life, and in case of his death for the use. and benefit of his wife Ada and child, or children, in the same manner until the children attained lawful age, when the corpus was to be divided equally between the wife Ada and children, and in case of no surviving children the half part of the corpus to the son’s wife Ada; the other half to testator’s surviving children. The will was dated October 5, 1871, at which time the testator was living with his son and the son’s wife Ada; on October 19, 1872, in the lifetime of the testator, upon the application of the wife, they were divorced a vinculo, having no children ; the son was remarried and died leaving a widow, Emma and child ; the divorced wife Ada remarried and was living with her second husband at the time of the adjudication.
    The auditing judge, Hanna, P. J., awarded one half the corpus to the legatee Ada, holding that the effect of the divorce was immaterial, referring to Burton v. Sturgeon, 34 Law Times Rep. (N. S.) 706; Fitzgerald v. Chapman, 33 Law Times Rep. (N. S.) 587; Bullmore v. Wynter, 48 Law Times Rep. (N. S.) 309. The court further stating that the testator survived the divorce, making no alteration in his will, that the divorce did not convert the legacy into a lapsed or void legacy. The court by Judge Penrose affirmed the adjudication on an additional and different theory, but it did not disturb the conclusions stated by the auditing judge.
    In the recent case of Brown v. Grand Lodge A. 0. of U. W., 208 Pa. 101, the facts as stated in the opinion are: John P. Brown, in October, 1877, became a member of a subordinate lodge of the Ancient Order of United Workmen, and had a benefit certificate insuring his life in the sum of $2,000, payable at his death to Mattie Brown, his wife. In 1893 she obtained an absolute divorce from him, and in the same year he married Annie Z. Whaley. He died December 22, 1901, leaving to survive his widow, Annie Z. Brown, with one child; three children of his first wife, Mattie Brown, the beneficiary, who also survived, and who had possession of the benefit certificate; no change was made in the beneficiary. The decedent had contributed toward the support of his divorced wife and her children until his death.
    The judgment in favor of the divorced wife, the beneficiary named, was sustained. True, the facts are somewhat different and the adjudication of the rights of the parties in passing upon the charter and laws of this beneficial organization are not similar to the questions raised under this will, still this similarity does exist. At the time she was made beneficiary she was his wife, she was within the class recognized by the laws of the society. At the time of his death she was not his wife. The divorce severed their relations. Brown could have changed his beneficiary ; that he did not bad its weight in the decision of the court, Mr. Justice Mestrezat saying : “ It is manifest that John P. Brown intended that his first wife should continue to be the beneficiary after they had been separated by the divorce proceedings. . . . The divorce was granted eight years before his death, yet he allowed these years to go by without a surrender of the policy and a change of the beneficiary, or without disclosing any desire to make a change. . . . Under the circumstances it is evident that he never intended or desired to exercise his power of appointment, and thereby deprive his first wife of the benefit of the policy issued by the defendant company.”
    The contention that the divorce absolutely severed the marriage relations is correct; if this claim were based on that relation alone it would be summarily dismissed; but it arises from an entirely different cause; its basis is the deliberate, mature act of the testator made when the end of the marriage relation had begun; an act that he continued to ratify during the months that the divorce proceedings were pending, in eveiy step of which he had notice, which act he continually reaffirmed during the long period after the divorce, ending only with his death.
    It does not follow that because the divorce made these parties as strangers to each other, so far as their marital rights were concerned, that, therefore, the testator’s deliberate act in making this devise, which did not necessarily depend on the marriage relation, a void or lapsed devise.
    The facts here do not bring this case within the rule, that the law works a revocation where the changed relations raise a reasonable presumption of a change of intention in the testator’s mind.
    To strike down his expressed intention, and substitute therefor a presumption of his change of intention, would lead to a result unwarranted in principle or precedent.
    Why the testator did not alter his will, cannot be known. He had almost two years in which to change it. Although divorced, the devisee was not a stranger to him or to his blood. She was the mother of his only child. Both remained unmarried to his death; her subsequent marriage did not, so far as the record shows, enter into any consideration and is immaterial: There was no change or alteration in- his estate when the will took effect; the principal object of his bounty, his only son, who takes the remainder, by far the greater portion, of his estate, still continued as the chief object of care.
    His will made after the separation taking effect at his déath is presumptive legal evidence that he was satisfied and so intended the disposition of his property. He could, after the divorce, have made a new will with the same devise to the same person or any other devise to any other person; that he did not do so is persuasive that he intended the devise to Mary Brown Jones, his former wife, the mother of the child born to them both to remain in effect.
    In Schouler on Wills, sec. 427, it is said, “ In short revocation of a particular will by mere inference of law or presumption is limited to a very few instances in our modern practice ; whilst on the other hand, changes in the condition of the testator’s affairs or through the mortal chances to which he and Ms beneficiaries are exposed may work out a very different settlement and distribution of his estate after his death from what the will purported to arrange. Modern legislation itself repudiates in England and many of our states the whole theory of presumed intention to revoke on the ground of an alteration in circumstances ; and what is left of that theory aside from such statutes it would be difficult to say.”
    To hold under the facts in this case that the divorce revoked this bequest would not be in accordance with statutory regulation, and -would be extending the doctrine of an implied revocation beyond any authoritative adjudication, and would be contrary to the express and implied intention of the testator.
    On exceptions, Over, J., filed the following opinion:
    If the gift by the testator to bis wife Mary Brown J ones of one third of his estate was to her in her marital relation as she was not his wife at his death she could not take. Under the authorities cited by the auditing judge, however, it seems that the words “ my wife ” used by the testator in connection with her name, are descriptive only of the beneficiary, they do not imply that the gift was subject to the condition that she should sustain that relation to him at his death, and it is to be construed as being made to her in her individual capacity.
    The only change in testator’s relation from which an implied revocation might be inferred is that the marriage relationship between him and Mary Brown Jones was dissolved prior to his death. But if the gift was to her individually that would not affect her right to take, and as no new moral testamentary duties accrued to him subsequently to the date of the will, no presumption of a change of intention on his part arises, and therefore there is no implied revocation.
    For these reasons and others given in the opinion of the auditing judge the exceptions must be dismissed.
    Hawkins, P. J., filed the following dissenting opinion:
    If Mr. Jones had died intestate it must be conceded that this claimant would have had no standing here. Her right to claim in distribution would have depended on the continuance of the marital relation, and that liad been terminated by her act as completely as though she had died before Mr. Jones. The law gave her the option of qualified or absolute divorce, and having chosen the latter she would voluntarily have relinquished her whole interest in his estate. The statute of divorce prescribes that upon the dissolution of marriage, “ all and every the duties, rights and claims accruing to either of the parties at any time theretofore in pursuance of said marriage shall cease and determine ” and to this extent is part of the law of distribution. And why not apply this broad principle to wills ? Because, says counsel, there can be no implied revocation without statutory prescription; and divorce is not prescribed. But it is fully established that change of circumstances raises a presumption of change of intention and works a revocation of a will; and this presumption is said to be so strong that it may not be rebutted by parol evidence, on the ground that this would be productive of the evils which were intended to be averted by the statute of fraud: Marshall v. Marshall, 11 Pa. 430. There are subordinate reasons everywhere, said the court in Young’s App., 39 Pa. 115, varying the rule according to the laws of descent. The positive rules are given sometimes by statute, and sometimes by judicial decision; and the most positive of them are sometimes changed merely incidentally by a change in the laws of descent. For the law does not do or require vain things. It has accordingly been held again and again that testator’s sale of a thing specifically given is an implied revocation pro tanto notwithstanding the absence of statutory prescription : 1 Williams on Executors, 242. So it was held in Carey’s App., 75 Pa. 201, that revocation may be implied from change of domicil. No one can doubt that refusal to accept a legacy will work revocation pro tanto : Bryce’s Est., 194 Pa. 135. And so in Lee’s Est., 207 Pa. 218, it was held that a decree of divorce implied the revocation of a coverture trust, upon the ground that “ the law has severed the matrimonial bond as effectually as death could have done.” If this claimant had died before Mr. Jones there can be no doubt that the gift must have failed for she would not have been within the statute of lapse; and divorce is the equivalent of death. If divorce be the equivalent of death in such will, Flory v. Becker, 2 Pa. 470, it must be so in every will in which marital rights are involved. “ Implied revocations,” said Chancellor Kent (4 Comm. 521), “are founded upon the reasonable presumption of an alteration of the testator’s mind arising from conditions since the making of the will, producing a change in his previous obligations and duties. . . . There is not, perhaps, any code of civilized jurisprudence in which this doctrine of implied revocation does not exist, and applied when the occurrence of new social relations and moral duties raise a necessary presumption of a change of intention in the testator.” It is immaterial, said the court in Young’s App., 39 Pa. 115, “whether this principle of the common law was derived from the Roman law, or from our instincts of justice, certainly it is now a legitimate element of our common law, and we would not have received it but for those instincts. The Romans received it before us, because they were before us and because they too were human.” It seems clear, therefore, that there may be implied revocation of wills outside of statutory prescription.
    The pivotal question, then, is whether or not the change of conditions since the making of this will produced such a change in testator’s previous moral obligations and duties as raises a reasonable presumption of alteration of his mind and implies revocation of the bequest which he had made to his wife? If the gift was made because of the existence of the marital relation, divorce would certainly take away the reason for it; and without the reason which inspired, the legatee could have no equity to claim it. It is immaterial whether her husband made a will or not; for her application having been a voluntary and absolute renunciation of “all and every the duties, rights and claims accruing .... in pursuance of the marriage,” she took the risk and should abide the consequence. It is safe to assume that the gift would not have been made if the beneficiary had not stood in the relation of wife. It may be that Mr. Jones’s misconduct was so gross as to justify his wife leaving him, and that under the spur of remorse he made the will as a peace offering; but it would be asking too much of human nature to expect the husband to make such a gift in anticipation of his wife’s application for divorce and remarriage. “The natural presumption arising from these changed relations,” said the court in Lansing v. Haynes, 95 Midi. 16 (54 N. W. Repr. 699), “ is the reasonable one, and the one from which the law implies a revocation. The question is not to be determined by a possible presumption, but by the reasonable presumption. The possibility, therefore, that the deceased might have desired that the remainder of his property should go to his divorced wife, cannot be considered in determining the question of implied revocation in this case. Such disposition of his property would be unusual, and contrary to common experience,” and the grounds of divorce may be such as to make her claim “ repugnant to that common sense and reason upon which the law is based.”
    There is obviously an essential difference between a gift to “ my wife Mary Brown Jones ” and a gift to “ Mary Brown Jones ” without more. Irrespective of technical rules no one would hesitate to infer that the first was descriptive of the marital relation and imported on its face that the gift was made because of that relation; and that the latter was descriptive of the individual and imported an absolute gift. The difference of description would imply difference in purpose. So there is a material difference between a gift to testator’s wife and a gift to the wife of another in this that the former necessarily implies recognition of a marital duty and is therefore dependent on its continued existence; while the latter implies no more than a purpose of identification of the object of bounty. The question in this case is not who was intended to take—for Mr. Jones cannot be supposed to have had in contemplation a future wife—but the character in which this legatee was. intended to take, whether because of her marital relation to testator, or simply as an individual. If given because of the marital relation as the description imports, she can take it in no other character than as widow. It is suggested that to produce this effect an express condition of continuance of the marriage relation must have been attached to the gift; but there is no apparent reason why an implied condition should not be just as effective and the form of this gift implies continuance. Not only does the description of the legatee import on its face a conditional gift, but the quantity of the gift implies that testator had in view the intestate law and therefore marital right as the reason. There is a well-settled, principle that a widow will be presumed to take under the intestate law rather than under her husband’s will where her interest is the same in either event: Davison’s App., 95 Pa. 394; the statute furnishes the general rule of distribution and the will is simply declarative, and therefore no election is necessary; and conversely the testator must be presumed to have given in the same right in which this interest is taken by his widow, and therefore because of relationship to his widow as such. While it is said that this estate consisted in part of realty, the natural inference is that the gift of “one-third ” of the estate, which consisted largely of personalty, was suggested by the intestate law, and that consequently Mr. Jones had in view his wife’s marital right under that law as distinguished from her individual right. It was also upon this principle of implied conformity to the intestate law that bequests to a mother and her children gave the mother but a life estate : Plague v. Hague, 161 Pa. 643 ; and a legacy by a father to a child is understood as a portion, because it is a provision by a parent for his child: Miner v. Atherton, 35 Pa. 528. And it is upon a similar principle that a legacy is considered to have been given in satisfaction of a debt rather than as an independent gift where there is identity in amount.
    An intent to give because of the marital relation is therefore apparent.
    What Mr. Jones did or failed to do after the divorce was granted has nothing to do with the question involved here. If the divorce worked a revocation, it could not be republished in any manner other than that prescribed by the statute of wills. Many wills have been revoked pro tanto by implication, as for example in case of ademption, without a suggestion that testator was required to make it effectual by a written modification of his will. The case of Brown v. Grand Lodge, 208 Pa. 101, is clearly distinguishable from this in that it was based upon a contract whose terms made change of beneficiary dependent on the act of the assured. Why Mr. Jones did not do what he was not required to do, the evidence fails to show. He may not have been in a condition after the divorce to have taken action, or he may have been advised or thought it unnecessary; but in any event he owed no duty to this claimant.

      It may be conceded that there are English cases inconsistent with this view—some of them arising on marriage articles and some on wills; but the cases even there were not harmonious. Vice Chancellor Malins said of Boreham v. Bignall, 8 Hare, 131, the leading case, that the court evidently thought from the peculiar language used, that there was an intention to benefit the particular wife of his nephew, then living, and that the court might well have come to a different conclusion. In Garratt v. Niblock, 1 Russ. & My. 629, it was held that by the expression “ my beloved wife ” testator must have meant a particular wife; and so in Bryan’s Trust, 2 Sim. (N. S.) 103, the language of the gift was held to point out a particular husband: Lyne's Trust, L. R., 8 Eq. 65. On the other hand, where there was a devise to testator’s nephew for life, with remainder to the nephew’s wife for life with remainder to children of his nephew by said wife, it was held to extend to the nephew’s second wife: Peppin v. Bickford, 3 Ves. 570. In a somewhat similar case Vice Chancellor Malins reached the same conclusion. Attention is called to the fact that Sir George Jessel, master of the rolls, in a subsequent case disapproved of this decision; but he was noted for his disregard of precedent and his dictum might not stand against the ruling of a court of superior jurisdiction. Two cases were also cited on behalf of claimant from Supreme Court Reports in this country against implied revocation by divorce; but an examination of these cases will show that they are not applicable here. In the first (Bullock v. Zilley, 1 N. J. Eq. 489) the bequest was, not to the testor’s wife, but to his son “ Thomas Bullock and Rebecca his wife,” and the decision was rested upon four grounds suggested by the peculiar language of the will as showing testamentary intent to make an absolute gift. No authorities were cited. In the other case (Charlton v. Miller, 27 Ohio, 298) the bequest was made in contemplation of marriage, and the court very properly held that it did not depend on marriage and could not therefore be lost by divorce. Even those cases which deny implied revocation by divorce, concede that a slight indication of a different intent will prevail, and are therefore distinguishable from the present case on this ground.
    On the other hand, the case of Lansing v. Haynes, 95 Mich. 16 (54 N. W. Repr. 699), cited for the estate, is a strong authority in support of the doctrine of implied revocation by divorce. Mr. Lansing and wife executed mutual wills of their respective estates, and were afterward divorced. Pending the suit in divorce they entered into an agreement of division and release of their property, but no reference was made therein to their wills ; and on Mr. Lansing’s death an issue was raised of implied revocation on Mrs. Lansing’s presentation of the will. In a very able opinion by Mr. Justice Grant the court held that because of the absence of any reference to the will, the agreement did not amount to an express revocation under their statute ,\ but that an implied revocation arose from the divorce. “ By the decree of divorce in this case,” said the court, “the parties became as strangers to each other, and neither owed to the other any obligation or duty thereafter. There was therefore a complete change in their relations,” and the case fell within the principle laid down by Chancellor Kent, as above quoted. No Pennsylvania Supreme Court decision has been found in conflict with this view. The case of Brown v. Grand Lodge, 208 Pa. 101 cited on behalf of claimant, is, as already suggested, distinguishable from this by the fact that the right of the beneficiary had been fixed by contract subject to a new designation on the part of tbe assured which was never made, whereas revocation here arose by implication of law, and there was no rejoublication as prescribed by statute. The case may, therefore, to use the language of the court in Lansing v. Haynes, 95 Mich. 16 (54 N. W. Repr. 699), be decided on the “ common sense and reason upon which the law is based.”
    None of the judges who deny implied revocation by divorce attempts to reconcile his position Avith the common-law doctrine of implied revocation of will from change of circumstances ; and logically they are irreconcilable, for there can be no change of circumstance more radical than that produced by divorce; if ademption will imply revocation, much more should this. A husband as such may show the greatest generosity in testamentary disposition; but it is not in human nature to give to her who has held his domestic faults up to public gaze as a means of dissolving marriage. Who would for a moment believe that if Mr. Jones were living to-day he would give Mrs. Speer “ one-third ” of his estate? To ask is to answer the question. Independent of the personal question, consideration for his son’s interest would have a deterrent effect; the divorce caused such change in circumstances that his son became presumptively the sole object of testamentary obligation. And on the other hand, it is impossible to understand how, in view of Mrs. Speer’s renunciation, she can consistently claim what without the existence of the marital relation would never have been given. She has no equity to recognition.
    For these reasons I would disallow this claim.

      Errors assigned were in dismissing exceptions to adjudication.

      David T. Watson, of Watson and Ereeman, and George 0. Wilson, with them Wm. D. Evans, for appellant.
    The legacy in question was given to the claimant in the character of wife, and as she did not answer that description at the testator’s death, the legacy lapsed: Lee’s Estate, 207 Pa. 218 ; Miltimore v. Miltimore, 40 Pa. 151; Act of June 4, 1879, P. L. 88 ; Bell v. Smalley, 45 N. J. Eq. 478 (18 Atl. Repr. 70); Hitchins v. Morrieson, L. R. 40 Ch. D. sec. 30; Seibert’s App., 6 Atl. Repr. 105.
    The bequest to Mary Brown Jones has been revoked by implication by reason of the changed relations produced by her obtaining a divorce from the testator since the making of the will: Lansing v. Haynes, 95 Mich. 16 (54 N. W. Repr. 699).
    Whatever the desires of testator at and immediately before his death can be shown to be, will govern: Young’s App., 39 Pa. 115; Marshall v. Marshall, 11 Pa. 430; Chace v. Chace, 6 R. I. 407; Comfort v. Mather, 2 W. & S. 450; Johnson’s Estate, 201 Pa. 513; Ursinus College’s App., 23 W. N. C. 261.
    A divorce a vinculo in Pennsylvania is equivalent to death, so far as husband and wife’s relations and rights in the estates of each other are concerned: Flory v. Becker, 2 Pa. 470 ; Koenig’s App., 57 Pa. 352.

      Warren I. Seymour and E. K. Siebeneek, of Seymour, Patterson Siebeneek, for appellee.
    The use of the word ‘‘ wife ” is descriptive only and implies no condition: Hardy v. Smith, 136 Mass. 328 ; Giles v. Giles, 1 Keen, 685 ; Schloss v. Stiebel, 6 Sim. 1; Williams v. Neff, 52 Pa. 326.
    The word “ wife ” identifying the beneficiary relates to the date of the will: Garratt v. Niblock, 1 Russ. & My. 629; Parker v. Marchant, 1 Y. & C. 290 ; Anshutz v. Miller, 81 Pa. 212; Davis v. Kerr, 3 App. Div. 322 (38 N. Y. Supp. 387).
    The divorce did not render the legacy either lapsed or void: Doe v. Sheffield, 13 East, 526; Charlton v. Miller, 27 Ohio, 298; Evans v. Carrington, 1 Law Times Rep. (N. S.) 229; Bullmore v. Wynter, 48 Law Times Rep. (N. S.) 309; Fitzgerald v. Chapman, 33 Law Times Rep. (N. S.) 587.
    There was no implied revocation: Coates v. Hughes, 3 Binney, 498: Young’s App., 29 Pa. 115; Forse v. Hembling, 4 Coke, 60 ; Christopher v. Christopher, 4 Burr. 2182; Clingan v. Mitcheltree, 31 Pa. 25; Bryce’s Est., 194 Pa. 135 ; Lee’s Est., 207 Pa. 118.
    On the effect of divorce on the legacy we cite a case on all fours with the case at bar, viz.: Card v. Alexander, 48 Conn. 492; Boddington v. Clairat, 48 Law Times Rep. (N. S.) 110; Newlin’s Est., 209 Pa. 456: McKnight v. Read, 1 Wh. 213.
    April 10, 1905:
   Opinion by

Mb. Justice Potteb,

The questions presented by this appeal, as stated by the appellant, are:

1. Does a legacy, in these words, “ one third to my wife, Mary Brown Jones,” lapse, when the wife subsequent to the date of the will, at her own instance, obtains a divorce a vinculo matrimonii ?

2. Is a bequest “to my wife Mary Bi’own Jones ” revoked by implication, by reason of absolute divorce ?

We take up these questions in order.

What is there in the facts of this case to support the claim that the legacy has lapsed ? The person named as legatee did not die in the lifetime of the testator, nor did any other event occur in the lifetime of the testator, which under the language of the will, would render the testamentary gift inoperative. The donee survived the tegtator and is alive, and has both capacity and willingness to take under the will. But it is suggested in the argument, that while not physically dead, the donee by her own act in obtaining the decree of divorce, ended the marital relation, as absolutely as death would have done. This consequence did follow the divorce, in so far as the duties, rights and claims accruing to her by reason of the marriage are concerned. With respect to the determination of these rights, and these alone, is divorce the equivalent of death. The decree in divorce took away only what the law gave to her when the marriage was contracted. This was the right to support, and to dower in his estate if she survived him. After the entry of the decree, the testator was no longer bound to provide for her, and she had no further claim upon his estate. What the law gave, it took away; nothing more.

The beneficiary is not here claiming anything which accrued to her in pursuance of her marriage. She is here only as a legatee, and is asking for that only which the testator gave to her of his free grace, and as a matter of bounty. That which he gave to her in his will, was his own, to give or to withhold as he saw fit. A bequest needs no consideration to support it. As a legatee she stands upon the same footing as any other individual, and her relation to the testator has nothing to do with the case, unless he chose to make it an element, in the bestowal of the gift. Did he do so ? The provision in the will is as follows : “ I direct that my funeral expenses and all debts be promptly paid, and that my estate be divided as follows: One third to my wife, Mary Brown Jones, and the balance to my son, Thomas Mifflin Jones.” The will was dated April 24,1899, and Mary Brown Jones was then the wife of the testator. On February 6,1900, the said Mary Brown Jones began proceedings in divorce, and the decree was granted to her on September 19, 1900. Thomas M. Jones, Jr., the testator, lived about one year and eight months after the divorce was granted, and died on May 17, 1902. Mary Brown Jones did not remarry during the lifetime of the said Thomas M. Jones, Jr., but she did marry about six months after his death. It will be noticed that the gift was to “My wife, Mary Brown Jones,” without any conditions or limitations. The testator gives the one third of his estate to a particular person, naming her, and further identifying her by the statement that she is his wife that is in substance wbat he says. He makes no stipulation that she shall remain his wife, or be such at the time of his death. We are clear that such use of the word “ wife ” as is here made, is descriptive only, and does not imply any continuing condition.

“ The mere fact that a gift is made to a named legatee in a certain character, as for instance to my wife A, does not avoid the legacy, if the legatee does not happen to fill the character : ” Theobald on Wills (5th ed.), p. 247. In Bullock v. Zilley, 1 N. J. Eq. 489, the words “ his wife,” as applied to complainant, were held to be mere words of description of the individual, and not as defining the capacity in which she was to benefit. In Mellen’s Estate, 28 W. N. C. 120, where the beneficiary was named as “ T. W. the husband of my said daughter,” the word “ husband ” was held to be a description of the person and not of the character in which he was to take. The reasoning of Judge Penbose fits accurately this case. He said : “We may conjecture, but we cannot be certain, that the inducing cause of the provision for Thomas Waller was that he was the husband of the testator’s daughter. The relationship, however, could not have been the sole motive since the gift is to the individual by name, and not to him simply as husband, nor is there, as in Bell v. Smalley, 18 Atlantic Repr. 70, the evidence offered by the restriction of the bounty to the time during which the beneficiary remains unmarried. We have no right to say that the gift was subject to the condition that the donee should at the time it took effect be the husband of the daughter.”

In Brown v. A. O. U. W., 208 Pa. 101, where a certificate was payable at the death of John Brown to his wife, Mattie Brown, we held that it was for the individual, Mattie Brown, without regard to the fact of her continuing to be the wife of the member, and subsequent divorce did not forfeit her right. The husband there had the power to change the beneficiary at any time, and we held that the fact that he did not do so, during a period of eight years between the divorce and his death, made evident his intention not to deprive his first wife of the benefit of the policy. “ Where a man retains a revocable instrument with full opportunity of revoking it, and does not revoke it, there is a strong presumption that he wishes it to stand: ” Tilghman, C. J., in Irish v. Smith, 8 S. & R. 573.

We are clear that the will indicates that the testator intended the gift for the individual, Mary Brown Jones, who was at that time liis wife, and identified by him as such. We think the bequest is unrestricted, and that the words, “ my wife,” are, as we said above, only descriptive, and do not import a condition that the beneficiary shall remain his wife. Nor do we doubt that as to the object of the legacy the will speaks from its date : Anshutz v. Miller, 81 Pa. 212. “ Prima facie a gift to the wife of A, who had a wife living at the date of the will, goes to that wife and no other. ... If there is anything on the face of the will to show that an existing person is referred to, the case is clear: ” Theobald on Wills, 249.

Nor is there anything in the Act of June 4, 1879, P. L. 88, to the contrary. Under the requirements of that act, it is “ with reference to anjr real or personal estate embraced in it ” that every will shall speak as of the testator’s death. In Robeno v. Marlatt, 136 Pa. 35, the court below said, on page 37:' “It is claimed, however, that the act of June 4, 1879, bars their (after-born children) right. This act lias received judicial construction, the results of which are that as to the condition of the donees the will speaks as of the date; as to the subjects of the testamentary disposition, the will is construed as of the death; as to the objects, that is, the persons who are to take under it, and their condition, the will speaks as of its date ; as to the testator’s condition, it is to be considered as of its date. The act is restricted in its effect to the real and personal property passing under it.” And this statement was affirmed by this court.

But turning to the second question presented here, it is elaborately argued that as matter of law, the bequest to Mary Brown Jones was impliedly revoked by reason of the divorce. No authority has been cited in support of the proposition that divorce in itself is sufficient to work a revocation of a will, and we are not aware that any exists. The only case which has been cited by counsel as sustaining this position is Lansing v. Haynes, 95 Mich. 16. But examination shows that the Michigan statute allows the court to .determine whether the subsequent changes in the condition or circumstances of the testator, are sufficient to work an implied revocation of the will. And the decision in that case rested also upon the fact, that pending the divorce proceeding there was a settlement of the property rights of the parties. A division of the real estate was made, each deeding to the other. An agreement was also made by which the husband conveyed to the wife certain personal property, and she agreed to release him from all demands of every kind or nature. The agreement stated that it, and the deeds executed by them, were intended as a property settlement between them. This was a practical satisfaction of the bequest, and amounted to an ademption.

As we read this decision, it was controlled by the fact of the settlement of property rights between the parties and not by the divorce itself. At common law, the doctrine of implied revocation of a will from change of circumstances, did not include divorce. In fact the instances were few, under the common law, in which an alteration of circumstances was held sufficient to justify an implied revocation. Both at common law and under the statutes of most of the states, it is only certain definite changes in the condition or family relations of the testator which impliedly revoke a will, executed before such changes. The great weight of authority is that no changes beyond the few which have been many times specifically enumerated and recognized as sufficient for the purpose, can have this effect: Page on Wills, sec. 280. A will maybe so easily revoked by the testator in his lifetime that the courts have been slow in permitting changes in circumstances to do, by implication, what the testator may so readily do for himself. In Wogan v. Small, 11 S. & R. 141, Tilghman, C. J., said: “ There is one case, and only one, in which it has hitherto been thought proper to decide, that the revocation of a will might be implied from an alteration of circumstances, and that is, when the testator married and had a child, subsequently to the making, of his will; but both circumstances must concur; .... The danger of this principle of implied revocation is very great, and that is the reason why, although very strong eases of hardship have occurred, the judges have never ventured to advance beyond that one step. We have the less reason to resort to implied revocation, as our legislation has provided for the case of subsequent marriage or children by the Act of April 19, 1794, 3 Sm. L. 148. . . . Once establish the judicial habit of examining the situation of a man’s fortune or family, and revoking his will, because he has made an absurd or an inhuman disposition of his property, or because we merely suppose he was ignorant of the state of his affairs, or of the law, and no man’s will is safe.” These words were weighty then, they should be equally so now.

The opening sentences in Marshall v. Marshall, 11 Pa. 430, are obiter dicta, for there was no occasion in that case to consider the question of what was sufficient to justify an implied revocation of a will. That subject was not before the court. The testator in that case, after devising one tract of land to one son and another tract of land to another son, subsequently sold the first tract. It was urged that this would work a revocation of the whole will. But the court decided that the sale affected only the devise of the tract in question, and the residue of the wil] remained in full force. It was a case of ademption, which applies only to the subject-matter of testamentary disposition. When the subject-matter bequeathed is sold, or disposed of, it is thereby completely extinguished, and nothing remains to which the words of the will can apply. The principle of ademption is entirely distinct from that of an implied revocation of the terms of the will. Ademption has to do with the subject-matter of the bequests, while the doctrine of implied revocation is founded upon a presumed neglect of duty, upon the part of the testator, or upon a change in his family relations. Ademption involves action upon the part of the testator; the doing of some act with regard to the subject-matter, which interferes with the operation of the words of the will. That is he anticipates the gift there made, by bestowing it during his lifetime upon the legatee, or disposes of the subject-matter in some way which puts it out of the question to follow his directions as set forth in the will. Nothing of that kind has been done in the present case. The testator has not interfered with his estate in any way inconsistent with the terms of his will.

The statutory rules in Pennsylvania, as to the revocation of wills, are reviewed by Read, J., in Walker v. Hall, 34 Pa. 483, and on page 487 he says “ we have in reality substituted for the common-law rule, one of our own, depending entirely upon our statutory enactments ” and he concludes with the statement that our rules are not open to the doctrine of implied presumption. In Young’s Appeal, 39 Pa. 115, the court held that the testamentary paper was executed under a special power, and not under the statute of wills. Whatever is there said, as to a change in circumstances which create new moral duties, amounting to implied revocation, is obiter dicta, in so far as' it goes beyond the conditions enumerated in the statutory enactments. The decision was that the will was revoked by the birth of a son to testatrix after the making of the will. While it was the disposition of an equitable estate, yet it followed the principle of the statute.

We are by no means singular in holding to the doctrine that the changed condition of the testator must be within the conditions named in the statutes, for this view prevails largely in other states; for instance, in re Comassi’s Estate, 107 Cal. 1, it is said, “in order to determine whether a will has been properly executed or revoked, or whether, after its execution, there has been such a change in the status or personal relations of the testator as in law will effect its revocation, we have only to determine whether the changed condition of the testator is within the condition named in the statute (cites code) .... The effect of these provisions is to do away with the doctrine of implied revocation, which was for so many years a subject of controversy in the English courts, and which, in many of the states of this country, is still permitted under a clause in their statutes, authorizing a revocation to be ‘ implied by law for subsequent changes in the condition of the testator.’ ” And in Davis v. Fogle, 124 Ind. 41. “It is manifest that no act, thing or deed will revoke a will once duly executed, unless it comes within the provisions of the statute providing for the revocation of wills.” In Noyes v. Southworth, 55 Mich. 173, the court says: “ There is no sound reason that we can perceive why, in the absence of statutes, implied revocation should be extended.” And in Schouler on Wills, sec. 427, it is said: “ In short, revocation of a particular will by mere inference of law or presumption, is limited to a very few instances in our modern practice. Modern legislation itself repudiates in England and some of our states, the old theory of implied intention to revoke on the ground of alteration of circumstances, and what is left of that theory aside from such statutes it would be very difficult to say.”

A case much like the present, is Card v. Alexander, 48 Conn. 492. There the bequest was to “ my wife Amelia.” A year and a half after the execution of the will, the testator obtained a divorce from his wife, for her misconduct, and four years afterwards died, without changing his will. It was held that the bequest was not to be regarded as conditioned upon the wife continuing to be such until his death; and that the divorce did not as matter of law impliedly revoke the will. The circumstances of the divorce in that case spoke more strongly against the claimant than here. In the present case, it was the misconduct of the testator which caused the divorce.

We can see nothing in the facts of this case, which would justify any extension of the doctrine of implied revocation. The reason which lies behind the doctrine as defined both in the common law and by the statutes, is that some obvious injustice may be prevented. That some moral duty, which has been overlookéd, it is presumed, by the testator, may be discharged. What would be the result of holding in this case, that the change in circumstances worked a revocation ? Only this : the whole estate of testator would go to his son, to the entire exclusion therefrom of his former wife and the mother of his child. Can it be said that the obtaining by the wife of a divorce, by reason of the misconduct of the testator, entailed upon him any moral duty to destroy the provision, which he had made in his will, for the woman who was for years his faithful wife, in order to pile up far more than a competency for their child.

The only inference which can be drawn from the record in this case, is that the testator, and he alone, was responsible for the rupture of the marital ties. It may well be, then, that by the provision in his will he intended to make some reparation for the sorrow and distress he brought upon his wife. To impute to him such intention would be more kind, than to presume, as is urged in the argument, that he was filled with resentment, and became possessed by an ignoble purpose which he failed to carry out. He must have known that he could change or destroy his will at any time, yet he did not do so.

We agree with the conclusions reached and stated by the auditing judge in his careful and able opinion, that “To hold under the facts in this case that the divorce revoked this bequest would not be in accordance with statutory regulations, and would be extending the doctrine of an implied revocation beyond any authoritative adjudication; and would be contrary to the express and implied intention of the testator.”

The specifications of error are overruled. The decree of the orphans’ court is affirmed and this appeal is dismissed, at the cost of the appellant.

Mb. Chief Justice Mitcheul,

dissenting.

I would reverse this judgment for the reasons so ably set forth in the opinion of Judge Hawkins.

       Also Reported, 40 Pao. Repr. 15, Reporter.

       Also reported, 23 N. E. Repr. 860.

       Also reported 20 N. W. Repr. 891, Reporter.


source: Caselaw Access Project

author: Mr. Justice Brown,

license: Public Domain

text:
    Philadelphia to use v. Pierson, Appellant.

      Municipalities—Municipal contract—Bond of contractor—Approval by city solicitor.

    Where in an action on a bond given by a city contractor to secure subcontractors and material men, it is positively averred in the statement of claim that the bond of indemnity given by the plaintiff to the city against costs has been approved by the city solicitor, an averment in the affidavit of defense that the defendant is informed that the bond had not been approved by the city solicitor, is insufficient to prevent judgment.
    In such an action an averment in the affidavit of defense filed by the surety, that the plaintiff had agreed to give a bond to the contractor to indemnify -the latter against defects in workmanship and materials, and that such bond had not been given, is insufficient to prevent judgment, there being nothing to show that any loss had been occasioned by the failure to give it, or that it was involved in any way in the issue between the use plaintiff and the surety.
    In such an action damages to the contractor’s property, caused by the negligence of the driver of the use plaintiff, cannot be set off against the use plaintiff’s claim' for materials furnished.
    Where the contractor agrees to guarantee the material man for the payment of material furnished to a subcontractor, and such material actually goes into the building covered by the municipal contract, the surety of the contractor will be liable to the material man for the material furnished to the subcontractor.

      Practice, C. P.—Affidavit of defense—Judgment.

    The right of a plaintiff to judgment on a rule for it for want of a sufficient affidavit of defense must be determined from the affidavit and the plaintiff's statement. The court can consider nothing else in disposing of the rule. The plaintiff is entitled to payment of only such an amount as he had a right to sue for when he brought his action. The fact that the whole sum may have become due when he asks for judgment, is no reason for awarding it to him, if in the first instance he had no right to sue for it.
    Argued Jan. 23, 1905.
    Appeal, No. 195, Jan. T., 1904, by defendant, from order of C. P. No. 5, Phila. Co., Sept. T., 1903, No. 2201, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Philadelphia to use of James V. Watson, trading as Rittenhouse Quarry v. George W. Pierson and The Lincoln Savings & Trust Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Elkin, JJ.
    Affirmed with modification.
    Assumpsit on a bond of a municipal contractor.
    Rule for judgment for want of a sufficient affidavit of defense.
    The opinion of the Supreme Court states the case. ■

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

      William W. Porter, for appellant.
    The bond of indemnity for costs, required by the ordinance, was a condition precedent to suit. This bond was not given by plaintiff as required Harrisburg v. Mish, 14 Pa. Superior Ct. 496 ; City of Erie v. Moody, 176 Pa. 478; Reilly v. Phila., 60 Pa. 467; Olds v. Erie City, 79 Pa. 380 ; Bladen v. Phila., 60 Pa. 464 ; Norwegian Street, 81 Pa. 349; Ammerman v. Stone, 11 Pa. Dist. Rep. 726.
    The contract is an entire contract and hence it was necessary for use plaintiff to have performed both of his promises : (a) to do the work; (5) to furnish the bond, before he can bring suit against the defendants for the consideration money : Martin v. Fridenberg, 169 Pa. 447; Carmalt v. Platt, 7 Watts, 318 ; Cleaver v. Garner, 133 Pa. 419 ; Levering v. Phillips, 7 Pa. 387; Martin v. Schoenberger, 8 W. & S. 367; Roberts v. Brett, 6 C. B. (N. S.) 611.
    Certain amounts were set up in the affidavits of defense which should have been deducted from the amount for which judgment was rendered: Glennon v. Lebanon Mfg. Co., 140 Pa. 594.
    Appellant is not liable on the penal bond for the materials furnished by plaintiff to Peters: Grier v. Assurance Co., 183 Pa. 334.
    The penal bond does not secure sub-subcontractors : Harlan v. Rand, 27 Pa. 511; United States v. Surety Co., 21 Pa. Superior Ct. 153; United States v. Farley, 91 Fed. Repr. 474; United States v. Simon, 98 Fed. Repr. 73; Bowditch v. Gourley, 24 Pa. Superior Ct. 342; American Surety Co. v. Lawrenceville Cement Co., 110 Fed. Repr. 717 ; Com. v. Wistar, 142 Pa. 373.

      George R. Van Dusen, for appellee.
    If a bond be found upon the files of a public office without any evidence accompanying it that it has been rejected, the presumption is conclusive it was approved. No formal approbation is necessary: Apthorp, Treas., v. North, 14 Mass. 167; Dedham Bank v. Chickering, 20 Mass. 335; Bank of the United States v. Dandridge, 25 U. S. 64; Com. v. Zillafrow, 207 Pa. 274.
    A set-off claimed by defendant for which assumpsit will not lie by him against the plaintiff, is not a proper subject of set-off in his favor when plaintiff sues him in assumpsit: Jenkins v. Rush Brook Coal Co., 205 Pa. 166 ; Ahl v. Rhoads, 84 Pa. 319.
    It is submitted that all the other questions raised by the assignments of error have been by the appellate courts decided adversely to appellant’s contention: Bowditch v. Gourley, 24 Pa. Superior Ct. 342; Philadelphia v. McLinden, 205 Pa. 172; Slutter v. Kirkendall, 100 Pa. 307 ; Hershey v. McLaughlin, 17 Pa. Superior Ct. 87.
    April 10, 1905:
   Opinion by

Mr. Justice Brown,

By the ordinance of the city of Philadelphia approved March 30, 1896, providing for a bond from a contractor for municipal work, to secure the prompt payment to all persons supplying him with labor or materials, whether as a subcontractor or otherwise, there is a direction that before any person shall have a right to institute suit on the bond as the use plaintiff, lie shall furnish such indemnity to the city against costs as shall be approved by the city solicitor. The averment in appellee’s statement of claim is that he, as use plaintiff, had, in compliance with the provisions of the ordinance, filed with the city of Philadelphia his bond indemnifying it against the costs of any action to be brought by him upon the bond given by Pierson, the contractor, and that the bond of indemnity had been duly approved by the city solicitor. The appellant, insisting that the execution of such a bond and its approval by the law officer of the city are conditions precedent to the plaintiff’s right to sue, avers in its affidavit of defense that it is informed that at the time the writ issued against it the city solicitor had not approved the bond of indemnity tendered to the city by the use plaintiff, and it “therefore denies the allegations to that effect contained in the statement of claim.” Of the distinct averment of what the appellant alleges is a material fact, there is no distinct denial. There is a vague averment of information given the appellant that the bond had not been approved. An affidavit of defense is good only when it contains averments which, if proved at the trial, would be a defense to the plaintiff’s claim. An offer to prove that this appellant had been informed that the bond of indemnity had not been approved would hardly be made by counsel on a trial of the cause, and, if made, would be promptly overruled by any court to which it might be made, for it would be no proof that the bond had not been approved. If it had not been approved, the failure to approve it would have to be proved, as any other material fact in the case, by proper testimony. The averment is not that the bond had not been approved, and that the appellant expects to be able to so show on the trial; and the allegation, in reply to the plaintiff’s clear averment of its approval, that the appellant had been informed otherwise, is to be regarded as nothing more than an attempt to defend on hearsay evidence. The denial of the approval which follows is of no more effect than the allegation of information, for the denial is admittedly based on the alleged information. Another averment is that the bond was null and void because it liad not been “prepared in the office of the city solicitor,” in accordance with the Act of June 1, 1885, P. L. 37, which provides that all contracts, bonds and other instruments of writing in which the city is concerned shall be prepared in the office of the city solicitor, for which he shall receive for the city a reasonable fee from the persons for whom such instruments may be drawn. This last objection is not seriously pressed in the printed argument, probably for the reason that it was not expected we could give it serious consideration. It is, therefore, dismissed without comment.

In his contract with Pierson the appellee agreed to give him a bond to indemnify him against defects in workmanship and materials for one year after the city’s acceptance of the building, and there is an averment in the affidavit of defense that such bond had not been given. There is no averment that Pierson ever exacted it, or that any loss had been occasioned by the failure to give' it. Though he is sued with the appellant, he makes no defense to this action, which is brought for the recovery of materials furnished. The affidavit of defense is made by The Lincoln Savings and Trust Company alone. It is sued on a bond which was not given to the appellee to secure the faithful performance of Pierson’s contract with him, but to the city of Philadelphia, to secure the payment of materials and labor furnished in the erection of the school building, and, so far as can be gathered from the affidavit of defense, the failure of the appellee to give the bond of indemnity to Pierson is not involved in this issue between the use plaintiff and the defendant on its bond, given to the city for the purpose stated.

A credit of $14.00 is claimed under the averment that the defendant is entitled “ to a further credit of fourteen dollars for moneys expended by the said George W. Pierson in repairing a pave-wash broken by teams belonging to the use plaintiff and driven by a servant of the use plaintiff.” This is insufficient to establish a set-off in this action of assumpsit. From all that appears from the averment, if there is any liability from Watson to Pierson on this item, it is on a technical tort and cannot be used as a set-off to appellee’s claims: Ahl v. Rhoads, 84 Pa. 319; Jenkins v. Rush Brook Coal Co., 205 Pa. 166.

There is nothing in the affidavit of defense which would have justified the court below in withholding judgment for the reason that time had been given by Pierson to the plaintiff in discharge of the surety, and the assignment as to this is dismissed.

One of Pierson’s subcontractors was Lucas Peters. The appellee furnished him stone, which was used in the construction of the school building'. On January 23,1902, Peters agreed, in writing, to purchase it, and Pierson, by a writing, became surety to Watson for the payment of it. In the contract between these two there was a provision that no extra bills for work and materials should be charged to Pierson, unless the same were ordered by him in writing. The stone furnished to Pierson was for the building erected by him, and he agreed to pay for the same. Peters was. the conduit through which he received it. From his agreement that he would pay for it, it is to be assumed that unless he had so agreed, it would not have been furnished. After it was furnished on his undertaking to pay for it, and used as material in the construction of the building, the claim of the plaintiff for this item of $1,104.90 is clearly within the protection of the bond, which is that the contractor shall and will promptly pay all persons supplying him with labor and materials.

By the terms of the contract Pierson was to retain five per cent, of the bill for stone until one year after the city had made final payment for the building. There is an averment in the affidavit of defense that final payment was made April 23, 1903. This suit was brought October 21,1903. At that time the five per cent, which Pierson had a right to retain was not yet due, and the plaintiff could not have included it in his claim. On June 4,1904,—the date of the entry of judgment by the court below—more than a year had expired from the time final payment was made, and for this reason the court was of opinion that the affidavit of defense as to the five per cent, item was not good. This is the only error in the record. The right of a plaintiff to judgment on a rule for it for want of a sufficient affidavit of defense must be determined from it and the plaintiff’s statement. The court can consider nothing else in disposing of the rule. The appellee was entitled to payment of only such an amount as he had a right to sue for when he brought his action. At that time, and even when the affidavit of defense was filed, on April 2, 1904, he was not, according to its averment, entitled to $305, or five per cent, of the $6,100—the contract price for the stone ; and the fact that the whole sum may have become due when he asked for judgment is no reason for awarding it to him, if, in the first instance, he had no right to sue for it: Columbia National Bank v. Dunn, 207 Pa. 548.

Tbe judgment below must, therefore, be modified, and the record is remitted with direction to the court to reduce the judgment entered for $2,704.91, by deducting from it $805, with leave to the plaintiff to proceed for the collection of that item, if, under the proofs, he is entitled to recover it.


author: Mb. Justice Bbown,

text:
    McManus, Appellant, v. Philadelphia.

      Municipalities—Municipal contract—Estimate—Bid.

    A city invited bids for a contract for the fills and cuts in grading a street. A survey had been made by the city surveyor and bidders were informed by the city authorities of the estimated number of cubic yards required. When the plaintiff, the successful bidder, applied to the bureau of highways for information as to the character and quantity of the work, he was sent to the office of the district surveyor, where he was directed to the bulletin on the wall which announced the quantity of cut and fill that would be required. His bid to do the work at a certain price per cubic yard was submitted on the information so furnished him and the contract was awarded to him. After the acceptance of the bid, but before the contract was executed, the city surveyor made another and secret survey which resulted in an estimate of about one third less cubic yards than the former survey. This survey was subsequently found to be erroneous, and the first one correct. When the contract was prepared and offered to the lowest bidder it contained these words: “It is further distinctly understood and agreed that the total amount to be paid for the work done under this contract shall in no event exceed” an amount stated. This amount was slightly in excess of the cost of the number of cubic yards of the later and erroneous survey at the contract price per yard. The contractor’s attention was not called to this limitation, and relying on the information-which he had received as to the estimates of the first survey, he executed the contract. The contract did not state any number of cubic yards. The work actually done was in excess of the estimates of the first survey. Held, that the contractor was entitled to recover from the city for the full number of cubic yards of work done by him, notwithstanding the limitation in the contract.
    Though contracts with a city may be required by law to be in writing, they are nevertheless subject to reformation for fraud, accident or mistake. A municipality cannot profit from either of these in connection with a written contract with it. Whatever may be its rights and privileges, it does not have this advantage over an individual. Equity treats them alike.

      Execution—Stay of execution—Judgment—Equity.

    In entering judgment for the plaintiff on the law side of the court, it is not proper for the court to stay the execution during the pendency of an equity suit between plaintiff and another party as to the ownership of the fund. In such a case the proper practice is for the defendant to ask for a rule on the plaintiff to show cause why leave should not be granted to pay the money into court in discharge of the judgment.
    Argued Jan. 25, 1905.
    Appeal, No. 345, Jan. T., 1904, by plaintiff, from order of C. P. No. 1, Phila. Co., Dec. T., 1898, No. 545, sustaining exceptions to referee’s report in case of Michael McManus v. City of Philadelphia.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Elkin, JJ.
    Reversed.
    Exceptions to report of George W. Harkins, Esq., referee.
    The facts are stated in the opinion of the Supreme Court.

      Errors assigned were in sustaining exceptions to report of referee and in staying the execution pending the equity suit.

      E. B. Bracken, for appellant.
    The contract in respect to the limitation clause did not correctly express the intention of the parties as to limit of amount to be paid plaintiff, and should be reformed on the ground of mutual mistake: Jenks v. Fritz, 7 W. & S. 201; Marvin v. Bennett, 8 Paige (N. Y.), 312; Martinsburg Bank v. Telephone & Supply Co., 150 Pa. 36 ; Lee v. Taylor, 154 Pa. 95.

      Marry T. Kingston, assistant city solicitor, with him John L. Kinsey, city solicitor, for appellee.
    Under the provisions of article 14 of Act of Assembly June 1, 1885, P. L. 37, “ All contracts relating to city affairs shall be in writing, signed and executed in the name of the city: ” Malone v. City of Philadelphia, 147 Pa. 416 ; Hepburn v. Phila., 149 Pa. 335.
    The defendant could not be bound by any statement or actions of an official prior to the execution of the contract of May 7, 1897, and much less could it be bound afterwards by any attempted change or alteration of its terms : McManus v. Philadelphia, 201 Pa. 619, 632.
    It was clearly within the province of the court below to make the order staying the execution : Whipple v. Fire Assn., 8 W. N. C. 259 ; Adams v. Mortland, 13 W. N. C. 221.

      John G. Johnson, with him George B. Van JDusen, for intervenor.
    By virtue of the assignment by McManus to Watson the money due by the city on the contract, the subject-matter of this suit, became the property of, and was payable to, Watson. Of this the city had notice by the bill in equity filed against it praying for an injunction enjoining it from paying over the sum recovered in this suit.
    'If it allowed judgment to be entered, an execution to issue and thereunder payment was made to McManus, it thus having notice of Watson’s claim, would be liable to pay again to him: Philadelphia v. Lockhardt, 73 Pa. 211; Adams v. Mortland, 13 W. N. C. 221; Whipple v. Fire Assn., 3 W. N. C. 259.
    The proper practice is for the defendant to petition the court to restrain the execution in the proceeding at law, and not as appellant contends to seek relief in equity.
    Equity will not grant relief where defendant has had opportunity and has ’ neglected to avail himself of it in his suit at law: Given’s App., 121 Pa. 260 ; Gordinier’s App., 89 Pa. 528 ; Frauenthal’s App., 100 Pa. 290 ; Haneman v. Pile, 161 Pa. 599.
    April 10, 1905:
   Opinion bt

Mb. Justice Bbown,

There is no dispute about the facts in this case. They are distinctly found by the referee, and his findings were not disturbed by the court below.

In March, 1895, Walter B. Jones, who was then surveyor of the ninth survey district of the city of Philadelphia, in compliance with a request from the bureau of highways, made estimates, under a survey previously made by him, of the amount of fill and cut that would be required in grading Lincoln avenue to the established grade between Wayne and Green streets. By his survey, and his calculations and estimates based on it, he found that 74,339 cubic yards of fill and 1,190 cubic yards of cut would be required in the grading of the avenue. These estimates were regularly entered in the estimate book in the office of the surveyor, and, with the plans and. cross-sections accompanying them, formed the official record of the survey of the avenue between the points named. In July of the same year Jones was succeeded by Joseph C. Wagner as surveyor of the district, who was filling the office when the case was before the referee.

In November, 1895, eight months after Jones had made his estimates, the bureau of highways advertised for proposals for the grading of Lincoln avenue, between Wayne and Green streets. The plaintiff applied to the bureau for information as to the character and quantity of the work, and was sent by the chief clerk to the office of Wagner, the district surveyor, where he was directed to the bulletin on the wall, which announced the quantity of cut and fill that would be required. The estimates on the bulletin were those which had been made by Jones in the previous spring, and had apparently been verified and accepted or adopted by Wagner, his successor, who testified that “ they were the estimates upon which the contractors got their information for the purpose of bidding’.” They were, therefore, at the time the plaintiff applied for information, as found by the referee, “ the official figures on which any contract was then to be based.” On them as a basis the plaintiff submitted his bid of forty-nine cents per cubic yard for the work, being the lowest of several bidders.

On May 7, 1897—nearly eighteen months after his bid had been submitted—the appellant was notified by the city solicitor’s department that a contract for grading Lincoln avenue “ according to your bid of 1895 ” was ready for execution, and four days later a notice came to him from the bureau of highways to “ proceed at once with the work of grading Lincoln avenue from Wayne avenue to Green street, under the contract awarded you 11 /19/95.”

Between the date of the plaintiff’s proposal and that of the notice to him that the contract was ready for execution and that he should proceed with the work, without any information having been given to him, and without his knowledge, according to his uncontradicted testimony, Wagner made a resurvey of Lincoln avenue between the points stated. This resurvey was made in the month of April, 1897, and resulted in an estimate of 52,469 cubic yards of fill and 1,656 yards of cut—a difference in the estimate of fill announced on the bulletin in the surveyor’s office at the time of the plaintiff’s bid in November, 1895, of nearly 22,000 cubic yards. Utterly unaware of this resurvey and this change of quantity, plaintiff signed the contract upon which this suit is brought. There is no reference in it, or in the specifications, or the plaintiff’s proposal attached to it, to the quantity of cut and fill required, but it was undoubtedly drawn on the basis of the resurvey by Wagner, as it contains a limitation or contract price in the following words: “ It is further distinctly understood and agreed that the total amount to be paid for the work done under this contract shall in no event exceed the sum of $26,000.” This amount is slightly in excess of the cost of 52,469 cubic yards at forty-nine cents per yard. The plaintiff’s attention was not called to this limitation, and, relying on the notices he had received that his bid of November 19, 1895, had been accepted, which was based on the estimates of over 74,000 cubic yards at that time published on the bulletin in the office of the surveyor, he assumed that the contract price was in accordance with the information given him by the city, and signed the contract without noticing the stipulation. The first knowledge he had of the limitation on the sum to be paid for the whole work was after he had started on it, when he called the attention of surveyor Wagner to the discrepancy in the price according to the stipulation, and asked whether the whole street was to be graded as originally advertised for. He was told that he was to grade it all, and, relying up@n this assurance, he went on and completed his contract, using and filling in for that purpose 77,000 cubic yards of earth by actual cartage measurements.

The resurvey and the calculations by Wagner were clearly erroneous and grossly inaccurate. What may account for the great discrepancy between the calculations and estimates of the two surveyors, Jones and Wagner, is not important, though discussed by the referee, for his finding is that the survey, calculations and estimates of Jones were correct, and those of Wagner were not. Nor need we consider the contention of the plaintiff before the referee, that there was a scheme by certain subordinate municipal officers Jo compel the appellant to withdraw as the lowest bidder, or to punish him if he did not. The finding is that he furnished and used 77,000 cubic yards of fill in grading the avenue, and the single question is whether the referee was right in his legal conclusion that, under the facts found, the plaintiff should be paid for the same at the rate of forty-nine cents per yard, which was his bid, or the court below, which filed no opinion, correctly held that, though the contract itself provided he should receive that sum per cubic yard, he is limited in recovering to a little over two thirds of what he ought to receive by the yard, because there was a stipulation that the total amount to be paid should not exceed $26,000.

Though no reason was given by the court for overruling the referee’s conclusion that the plaintiff ought to be paid for the work actually done at the cubic yard price agreed upon, it is to be assumed the city’s contention was sustained, that the plaintiff had not, by a contract in writing, established his right to recover what he claimed. “All contracts relating to city affairs shall be in writing, signed and executed in the name of the city,” are the words of the Act of June 1, 1885, P. L. 37 ; and there can be no recovery from the city of Philadelphia on a contract that is not in writing. No attempt to make it liable on contractual relations not established, as directed by the mandatory words of the statute, has yet succeeded, and none will succeed while it remains the written law. This is so well known that none of our cases on the subject needs be cited.

But there is a contract in writing here, and the claim of the plaintiff is not for anything that he did not do under it. He is not asking to be paid for extra work, or for compensation for anything that he did for which the contract does not provide, and the two cases of McManus v. Philadelphia, 201 Pa. 619 and 632, chiefly relied on by the city, are not in point. On May 7, 1897, the city notified the plaintiff that a contract was ready for execution by him according to his bid made in 1895. On the same day he executed it, and in it the city agreed to pay him forty-nine cents per cubic yard for cut and fill. Here are the clearly expressed intentions of both parties that the work should be done by the cubic yard and the promise of the city to so pay for it; and, with absolutely no knowledge by the appellant of the changes in the estimates that had been erroneously made by the surveyor, Wagner, he signed the contract, innocently relying, as he must have relied, on the estimates correctly made by Jones. He saw in the contract that he was to be paid forty-nine cents per cubic yard and is presumed, of course, to have seen the stipulation which followed, that in no event should the sum to be paid under the contract exceed $26,000. If he had stopped and made a calculation, he would have discovered the great discrepancy. But was he bound to do so, if in all other respects the contract expressed what, under the undisputed facts, he was justified in regarding as the real intention and agreement of the city and himself, that he should do the work by the cubic yard and be paid forty-nine cents for each yard of fill or cut ? He actually used 77,000 cubic yards of earth, which was about the quantity he expected would be required under the estimates submitted to him, and it would be unconscionable to permit the city to say, in the face of its concealment from him of the erroneous estimates made on the inaccurate survey by Wagner, that the stipulated maximum price based on these inaccuracies is not a mistake and he is bound by it. This being so, the plaintiff stands on a written contract with the city, not to be altered, varied or departed from, but, to put it mildly, to be reformed for a mistake. If not reformed for that reason, it manifestly will not give expression to what, under the facts, the city is estopped from saying ought not to be regarded as the real intention and agreement of the parties to it. In a very satisfactory opinion this is substantially what the learned refer ee decided, and in his conclusion we concur. Though contracts with the city of Philadelphia must be in writing, they are subject to reformation for fraud, accident or mistake. A municipality cannot profit from either of these in connection with a written contract with it. Whatever may be its rights and privileges, it does not have this advantage over an individual. Equity treats them alike.

On the same day' that the judgment was directed to be entered the city presented a petition for an order to prevent the plaintiff from collecting it until the claim of James V. Watson for the amount due on it was passed upon in a proceeding on the equity side of the court. Apparently with no notice to the plaintiff of the presentation of this petition, an order was made staying execution on the judgment until the final disposition of the equity suit. This cannot be regarded as regular. When the judgment was entered it was the duty of the city to pay, and if there was another claimant for the fund, the proper practice would have been to ask for a rule on the plaintiff to show cause why leave should not be granted to pay the money into the court in discharge of the judgment. In disposing of such rule the court could make the proper order for the protection of the claimant.

All of the assignments are sustained and the record is remitted with direction that judgment be entered for the plaintiff on the report of the referee, with leave to the city to ask for a rule to show cause why it should not be permitted to pay the money into coúrt.


author: Mr. Justice Mestrezat,

text:
    Hope v. Philadelphia & Western Railroad Company, Appellant.

      Railroad—Eminent domain—Land damages—Competency of witnesses— Evidence.

    In railroad condemnation proceedings witnesses are competent to testify on the question of land damages who state that they know the land in question, the character of the soil and of the improvements, and also that they know of sales and prices of real estate in the vicinity of the property.
    The sum which the owner is entitled to recover by reason of the construction of a railroad through its land, is the difference in the market value of the property immediately before and after the construction of the road, and if a witness has a knowledge of the requisite facts to enable him to give the total amount of the difference, his inability to give the elements of damages does not render him incompetent. It simply affects the credit of the witness'and the weight of his testimony. It may partly or wholly discredit his testimony with the jury, but his opinion of total or aggregate loss or value is permitted to go to the jury as some evidence of the value of the property and the damages sustained.
    The question of the competency of a witness in cases of this character is a preliminary question and the trial court should see that the witness discloses his competency by a proper examination before he is permitted to testify generally.
    Argued Feb. 6, 1905.
    Appeal, No. 247, Jan. T., 1904, by defendant, from judgment of C. P. Chester Co., Jan. T., 1904, No. 77, on verdict for plaintiffs in case of Mary J. Hope and Clarence B. Hope, Administrators of Thomas Hope, deceased, v. Philadelphia & Western Railroad Company.
    Before Mitchell, C. J., Dean, Brown, Mestrezat and Potter, JJ.
    Affirmed.
    Appeal from award of jury of view. Before Hemphill, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiffs for $8,350. Defendant appealed.

      Errors assigned were in overruling objections to, and admitting evidence of, certain witnesses for plaintiffs.

      George Quintará Horwitz, with him E. Wilbur Kriebel and MacElree ‡ Baldwin, for appellant.
    The witnesses were incompetent : Friday v. Penna. R. R. Co., 204 Pa. 405; Mewes v. Crescent Pipe Line Co., 170 Pa. 364 ; East Penna. R. R. Co. v. Hiester, 40 Pa. 53 ; Shano v. Bridge Co., 189 Pa. 245; Reyenthaler v. Philadelphia, 160 Pa. 195; Hewitt v. Pittsburg, etc., R. R. Co., 19 Pa. Superior Ct. 304.

      A. M. Holding, for appellees.
    The witnesses complained of were all competent: Penna. & N. Y. Railroad & Canal Co. v. Bunnell, 81 Pa. 414; Jones v. Railroad Co., 151 Pa. 30; Galbraith v. Phila. Co., 5 Pa. Superior Ct. 178; Smith v. Railroad Co., 205 Pa. 645 ; Pittsburg & Lake Erie Railroad Co. v. Robinson, 95 Pa. 426; Mewes v. Pipe Line Co., 170 Pa. 364; Lewis v. Springfield Water Co., 176 Pa. 230.
    April 10, 1905 :
   Opinion by

Mr. Justice Mestrezat,

This was a proceeding in the court below to determine the the amount of damages sustained by the plaintiffs’ intestate by reason of the location and construction of the defendant company’s railroad through his farm in Chester county. The only question requiring consideration here is the competency of certain witnesses called by the plaintiffs to prove the damages which they allege they have sustained by reason of the construction of the railroad through the land. The settled rule as to the measure of damages in such cases is the difference in market value of the whole property immediately before and after the construction of the road as affected by the improvement. To render a witness competent, therefore, to testify to the damages sustained in any particular case, he should have such knowledge as would enable him to estimate the market value of the entire tract of land both before and after the construction of the road through it. Adhering to this rule as the criterion of his competency, the witness should disclose some knowledge of the location of the land, its area, quality and productiveness, the extent and condition of the improvements, the manner in which the road passes through the premises, and of the value of other lands in the neighborhood at or about the time of the appropriation of the land by the railroad company. If the witness has some familiarity with these facts, his testimony must go to the jury. The extent of his knowledge affects the weight of his testimony and not his competency: Jones v. Railroad Co., 151 Pa. 30.

A witness need not be a real estate expert to qualify him to testify to the market value of property injured by the construction of a railroad through it, but all persons familiar with the property who have formed an opinion are competent to testify to its value: Jones v. Railroad Co., supra; Pennsylvania & New York R. R. & Canal Co. v. Bunnell, 81 Pa. 414 ; Beck v. Railroad Co., 148 Pa. 271. In Curtin v. Nittany Valley R. R. Co., 135 Pa. 20, it is held that a farmer, living a few miles distant, who has known a farm for forty years, seeing the greater part of it in passing and repassing upon the public road, has been upon it and at the buildings, and knows the general selling price of land in the neighborhood, is a competent witness as to market value. And in McElheny v. McKeesport & Duquesne Bridge Co., 153 Pa. 108, we held a witness competent who had known the property ten or fifteen years and knew of sales of like property in the neighborhood. In Pittsburg & Lake Erie R. R. Co. v. Robinson, 95 Pa. 426, Gordon, J., delivering the opinion of the court, said: “ Though his (witness) knowledge of the value of lands in that neighborhood may have rested solely upon a few purchases made by the railroad company, and from no other sales or purchases in the real estate market, yet he had some knowledge upon which to base an opinion, and the value of that opinion was for the jury.” In Mewes v. Crescent Pipe Line Co., 170 Pa. 364, it is said by Chief Justice Sterrett, delivering the opinion, that in Michael v. Crescent Pipe Line Co., 159. Pa. 99, in which he also delivered the opinion, it was not intended to adopt a severer test of competency of witnesses called to testify to damages sustained in eminent domain cases than had theretofore been applied to the same class of cases, and it was there held that a witness was competent to give an opinion as to the market value of land who lived on the adjoining farm and knew the character of the soil and of the improvements, and the prices at which land in the neighborhood had been held and sold. In Pennock v. Crescent Pipe Line Co., 170 Pa. 372, the only qualification of the witness was his knowledge of the land and the prices brought by other lands in the neighborhood upon which a similar servitude had been imposed. In White Deer Creek Improvement Co. v. Sassaman, 67 Pa. 415, it was held that “ the opinion of a witness acquainted with the facts, of the total or aggregate loss or value of injury, is evidence as to the amount, without describing the elements in detail.”

The appellant has failed to quote in the assignments of error all the testimony bearing on the competency of the witnesses whose admission to testify is the subject of complaint in the assignments. We have, however, read the testimony as printed in the appendix of the paper-book, and are satisfied that the witnesses disclose a sufficient knowledge of the requisite facts to render them competent to testify in this case. The witness Long is a farmer and had resided in the vicinity of the Hope land nearly seventy years. Ramsey' had lived in the vicinity of the land all his life and was familiar with it. Copeland is a farmer, was acquainted with the Hope property, and had resided within four miles of it for twenty-one years. William Mullen is a farmer and supervisor and lived within two miles of the Hope property and knew it well. Frank Russel is postmaster at Pomeroy, knew the property, and had lived in the neighborhood for thirty-seven or thirty-eight years. Samuel D. Parke owns a farm and lived all his life within two miles of the Hope property and had passed it frequently. These are the witnesses whose competency is questioned in the assignments of error, and each of them testified that he knew the Hope land through which the defendant’s road is constructed, that he knew the character of the soil and of the improvements, and also knew of sales and prices of real estate sold in the vicinity of the property. It is, therefore, apparent, that these witnesses were fully competent to estimate the market value of the Hope land and to express an opinion as to the difference in its value before and after the construction of the railroad through it. Their competency was tested and disclosed in each instance by a preliminary examination before they were permitted to testify generally.

The learned counsel for the appellant contend that three of the witnesses disclosed incompetency by testifying that they were unable to give the items which entered into their calculation of the damages sustained by the plaintiffs. The authorities cited by the learned counsel do not sustain this contention. They simply declare what “ matters are to be taken into-consideration as affecting the market value.” But even when the witness gives these matters (elements of damages) “ they are not separately to be estimated item by item and a result to be reached by adding together the different estimates : ” Shano v. Bridge Co., 189 Pa. 245. The sum which the owner is entitled to recover by reason of the construction of a railroad through his land is the difference in the market value of the property immediately before and after the construction of the road, and if a witness has a knowledge of the requisite facts to enable him to give the total amount of the difference, his inability to give the elements of damage does not render him incompetent. It simply affects the credit of the witness and the weight of his testimony. It may partly or wholly discredit his testimony with the jury, .but, as said by Mr. Justice Agnew in White Deer Creek Improvement Co. v. Sassaman, 67 Pa. 415, his opinion of total or aggregate loss or value is permitted to go to the jury as some evidence of the value of the property and the damages sustained.

The question of the competency of a witness in cases of this character is a preliminary question and the trial court should see that the witness discloses his competency by a proper examination before he is permitted to testify generally.

The learned judge of the court below was well within the rules as to the competency of witnesses in this class of cases, as announced in our decisions, and, therefore, the assignments of error are overruled and the judgment is affirmed.