text:
    Robinson’s Estate.

      Husband and wife — Marriage —Contracts ■— Antenuptial contract— Fraud.

    Antenuptial contracts are not inherently fraudulent nor is there any such presumption. They require good faith, but fraud is not presumed in them any more than in other cases. There must be some evidence of gross disproportion or other fact from which fraud may be inferred before the- onus changes.

      Evidence — Husband and wife — Witness—Competency of witness— Widow — Antenuptial contract.

    A wife after the death of her husband is incompetent to testify that in signing an antenuptial contract she supposed that she was signing another and a different contract which had been previously shown to her.
    Argued March 27, 1908.
    Appeal, No. 78, Jan. T., 1908, by Helen O. Robinson, from decree of O. O. Phila. Co., July T., 1906, No. 287, dismissing exceptions to adjudication in Estate of Joseph B. Robinson, deceased.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Exceptions to adjudication.
    From the record it appeared that on October 2, 1902, Joseph B. Robinson was married to Helen M. Clawson. Prior to the marriage an antenuptial contract had been executed and acknowledged by the parties under which Mrs. Robinson was to receive $26,000 in consideration of her releasing all claims of dower and other rights in her husband’s estate. The sum of $25,000 was subsequently paid to her. There was evidence that the decedent had told his wife that he was worth $100,000, but as a matter of fact he was worth about $150,000. The auditing judge, Lamorelle, J., refused to consider the testimony of the widow, to the effect that she had signed the paper in question under the belief that it was another and a different contract previously read to her. The auditing judge refused the widow’s claim to participate in the estate.
    Exceptions to the adjudication were dismissed by the court.

      Error assigned was in dismissing exceptions to adjudication.

      J. Quincy Hunsicker, with him John H. Schwacke and J. Quincy Hunsicker, Jr., for appellant.
    In all cases of contracts between parties sustaining confidential relations affirmative proof is necessary on the part of the beneficiary. The burden is upon those claiming under the contract to prove affirmatively that no advantage was taken of the confidential relation ; that the contract was fair, adequate and equitable: that the contract was executed with a full knowledge of its provisions and their legal effect, and there must be the clearest proof of uberrima fides : Greenfield’s Estate, 14 Pa. 489; Wistar’s App., 54 Pa. 60; Kline’s Est., 64 Pa. 122; Darlington’s App., 86 Pa. 512; Miskey’s App., 107 Pa. 611; Shea’s App., 121 Pa. 302; Plankinton’s Estate, 212 Pa. 235.

      John G. Johnson, with him Walter E. Rex, for appellee.
    The testimony of the widow was not admissible to contradict her antenuptial contract: Hunt’s App., 100 Pa. 590; DeSilver’s Est., 32 Pa. Superior Ct. 174.
    There was an absence of proof of inadequacy of consideration, such as raised a presumption that the antenuptial contract was fraudulent: Shea’s App., 121 Pa. 302; Kline’s Est., 64 Pa. 122; Tiernan v. Binns, 92 Pa. 248; Bierer’s App., 92 Pa. 265; Smith’s App., 115 Pa. 319; Neely’s App., 124 Pa. 406; Ludwig’s App., 101 Pa. 535; Warner’s Est., 210 Pa. 431; Birkbeck’s Est., 215 Pa. 323; Kesler’s Est., 143 Pa. 386.
    June 23, 1908:
   Opinion by

Mr. Chief Justice Mitchell,

Antenuptial contracts are not inherently fraudulent nor is there any such presumption. They require good faith, but fraud is not presumed in them any more than in other cases. There must be some evidence of gross disproportion or other fact from which fraud may be inferred before the onus changes. As said by the learned judge below: The sum given in the present case was an outright gift; the wife took no chance; she Avas provided for in any and every event; whether her husband died rich or poor, Avhether he or she survived, was to her, so far as her temporal wellfare was concerned, a matter of no moment. A woman about to be married might readily accept outright a sum equal to one-sixth of her husband’s estate, and at the same time be willing to accede to a proposition that she would relinquish at the time of his death that which the law would give her and which by right she should have and get.”

The widow was clearly not a competent witness. As said by the learned judge below: “The contract did not prove itself ; two ivitnesses were called who identified the signatures of Joseph B. Robinson and of Helen M. Clawson; without this identification, the contract was not in evidence; the widow was then called, and her testimony was in effect a contradiction of the testimony of the tivo preceding witnesses; true, she did not deny her signature, but she did deny that in placing her signature to the paper in question, she intelligently signed the contract. In brief, her testimony was that Mr. Robinson had promised her the sum of $25,000 as a gift, telling her he was worth $100,000; had never explained to her that she was to renounce any legal rights as to dower, etc., and that the agreement he originally showed her was not as long as the one she was given to sign, in fact, was on one sheet of paper, and that, when she did sign, she did so upon the supposition that it was the previous contract rewritten, and not a new and a different one.” But even if she had been competent she was claiming against her husband’s estate in contradiction of her formal written agreement of which a duplicate had been in her possession for several years. The testimony was entirely inadequate for such purpose.

Judgment affirmed


source: Caselaw Access Project

author: Mr. Justice Stewart,

license: Public Domain

text:
    Juan F. Portuondo Cigar Manufacturing Company v. Vicente Portuondo Cigar Manufacturing Company.

      Trade-marks — Name—Portuondo cigar — Trade name — Unfair competition in trade — Fraud—Injunction—Equity—Laches—Estoppel.
    A dealer will be enjoined from using trade-marks, labels, and indices where they bear such resemblance to those of another dealer that it is impossible to reach any other conclusion than that they were designed from those of the other dealer, with not too much variation to prevent them from being accredited by the unobservant and unwary to the other dealer, and with just enough variation to distinguish one from the other when comparison is made between them.
    The general rule is that anything done by a rival m the same business, by imitation or otherwise, designed or calculated to mislead the public in the belief that in buying the product offered by him for sale, they were buying the product of another manufacturer, is in fraud of that other’s rights, and will afford just ground for equitable interference.
    Where a dealer not only simulates the labels, marks and designs of a rival, but addresses advertisements and circulars to the trade containing claims calculated to create the belief, contrary to the truth, that his goods, and not those of his rival, are the original goods known to the public under a particular name, such dealer is guilty of unfair competition in trade as well as an infringement of trade-mark, and will be duly enjoined.
    Where a dealer manufactures and sells cigars which become widely known by the dealer’s name, and he eventually incorporates his business, using his name in the corporate title, the corporation so formed has a standing in equity to enjoin another corporation from using the same name in its title, and in its business, where it appears that the second corporation based its claim to the use of the name from a brother of the oi'iginal dealer who had left the dealer’s employment, started a similar business in which he used the family name, subsequently became bankrupt, and thereafter made the assignment of the alleged right to use the name; and this is the case although the first corporation had never enjoined the brother from using the name, and had stood silent while the second corporation was spending large sums in extending its business under the name in controversy.
    In such a case the mere assignment of a name, without an assignment of any secret process or particular formula for making the cigars, is evidence that the assignment is a fraud on the first corporation’s rights, and is in itself sufficient to deprive the second corporation from claiming any benefit whatever from the doctrine of laches and estoppel.
    Where a party would be denied relief, because of his own laches, against a particular infringer, the immunity which results to the latter is not a right which can be made the subject of assignment to another.
    The doctrine of estoppel is only applied to promote justice and fair dealing; never to aid-a fraudulent purpose.
    Elkin, J., dissents.
    Argued March 30,1908.
    Appeals, Nos. 306 and 307, Jan. T., 1907, by plaintiffs and defendants, from decree of O. P. No. 3, Phila. Go., March T., 1906, No. 1,178, on bill in equity in case of The Juan F. Portuondo Cigar Manufacturing Company v. The Vicente Portuondo Cigar Manufacturing Company, Charles H. Kors, Louis Weinberg, T. R. Goodwin and Nathan Schwab.
    Before Mitchell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    No. 306 modified and No. 307 affirmed.
    Bill in equity for an injunction.
    The facts are stated in the opinion of the Supreme Court.
    The opinion of the court was delivered by von Mosohzisker, J., which'apart from the formal findings of fact and conclusions of law was as follows:
    In the disposition of this case the court has answered elaborate requests for findings of fact and law, in addition to making separate findings of its own. These answers and findings practically cover all the points involved, and for that reason we do not feel that the case requires-extended discussion. The court is satisfied that to a considerable degree there was a studied effort on the part of Vicente Portuondo to imitate the markings, labels and general method of dressing his goods that had been pursued by Juan F. Portuondo and thereby to profit on the magic that had already been given to the name of Portuondo by his brother. When the business of Vicente Portuondo went into bankruptcy the defendants in this case purchased the labels and other markings which had been used by Vicente, and their use was continued in a like manner by these defendants. In addition to this the defendants organized the defendant corporation under the name of “ The Vicente' Portuondo Cigar Manufacturing Company,” and advertised their goods as the original “ Portuondo ” cigar, using an imi* tation of the business signature.of “Juan F. Portuondo.” This course of dealing was such as to constitute that which is known in the law as unfair trade competition coupled with an infringement of a business name and in some instances infringement of trade-marks, to such an extent as to entitle the plaintiffs to relief. But the question is as to the measure of the relief that should be given. The plaintiffs and their predecessor, with full knowledge of everything that was going on, have seen fit to rest on their oars and to do nothing to protect their rights for a period óf about sixteen years. During this period the business of Vicente Portuondo grew and thrived, and subsequently declined and went into bankruptcy. The' tangible assets were bought from the receiver in bankruptcy and turned over to the corporation defendant in this case, which corporation also acquired, through an’agreement, executed by the said Vicente Portuondo, the right to use the name of Vicente Portuondo, for which right they are'now paying the widow of Vicente Portuondo a yearly allowance of $2,000.
    The name of Vicente Portuondo was the lawful and proper name of that individual; and after the individual Vicente Portuondo has been allowed the free use of his name for business purposes without any practical protest during this long and continued period-of years, should a court of equity step in and use the strong hand of a chancellor to stop even a fair and proper use of the name by Yicente Portuondo if alive or by the defendant corporation under the agreement executed by him now that he is dead? That is the question. In this connection it has been strongly argued by the defendants that the plaintiffs have been guilty of such gross laches in asserting their alleged legal rights that they are not entitled to any relief in equity; and many cases are cited to sustain this position. On the other hand, the plaintiffs cite authorities to the effect that long continued acquiescence, or failure to act, in cases of infringement of trade-marks and of unfair trade competition, although amounting to unreasonable delay or inexcusable laches, will not bar the right to an injunction to stop the unfair and fraudulent conduct complained of, but will only act as a bar to the right to an accounting of profits: McLean v. Fleming, 96 U. S. 245; approved in Menendez v. Holt, 128 U. S. 514.
    No Pennsylvania authorities, one way or the other, directly on this point have been presented, but the case of Go wans v. Ahlbor'n, 4 ICulp, 31, decided by Judge Rice when in the common pleas, follows the rule contended for by the plaintiffs. As this rule laid down by the supreme court of the United States has been followed by such an eminent Pennsylvania jurist as Judge Rice, and, further, as the rule appears to be supported by reason, we consider it controlling in the case at bar. However, as has been well said by the present chief justice of the supreme court of the United States, in Menendez v. Holt, 128 U. S. 514 : “It is in the exercise of discretionary jurisdiction that the doctrine of reasonable diligence is applied, and those who seek equity must do it. A court might hesitate as to the measure of relief where the use by others for a long period under assumed permission of the owner had largely enhanced the reputation of a particular brand.” • So in a case like the present, where a brother'who is a cigarmaker leaves the employ of his elder brother, who' is likewise a cigarmaker, to start in the cigar manufacturing business for himself under his own name, and is' allowed to continue the use of that nafne without practical protest for a period of upwards of sixteen years, and where toward the end of this long period after business reverses an arrangement is made to continue the use of his name in the cigar manufacturing business for his own benefit, and after his death for the benefit of his estate by a payment of an annuity to his wife, and where, on the faith of this arrangement, large sums of money are paid out and invested by innocent third parties in order to thus continue the use of the name, even though it may appear that in the conduct of this business the younger brother had been guilty of certain distinct acts of unfair infringement of the elder brother’s trade rights which had been continued by his successor under a belief of right — in a case like this a court may well hesitate as to the measure of relief, and the relief to be given may very properly be measured in accordance with the circumstances, taking into consideration the long delay and the effect thereof.
    Of course, it can be argued that the use of the name of Vicente Portuondo by the defendant corporation, and the use of the labels and other markings by that corporation, are a new use against which the plaintiff corporation has proceeded promptly enough, and as a strict legal proposition such a contention might be maintained ; but, on the other hand, it could as well be maintained that the use of the labels, name, etc., by the plaintiff corporation, dating from the time they acquired their rights from Juan F. Portuondo, would constitute a new use. But the eyes of a chancellor will see that in both in-, stances the facts really constitute the continuation of a prior use rather than the beginning of a new one. In considering the measure of relief to be given, it must be borne in mind that a certain business value was added to the name of Vicente Portuondo during this sixteen years by perfectly fair means and business enterprise, as well as by the unfair means complained of.
    We cannot say, under these circumstances, that it is plain that Vicente Portuondo had no right in the use of his name ; we can say, however, under our findings of fact in this case, that it is perfectly plain .that he had been guilty of abuses in the use of the name by his acts of unfair trade conduct. These acts stand out plainly in themselves. They speak for themselves. They have been written down, and are therefore plain, and can be stopped in the future. Although a chancelor will not be keen to sort the good from the evil for the benefit of a sinner, yet the court may, in measuring its relief, do so for the benefit of third parties whose rights are to be directly affected, where the plaintiff has been guilty of such gross laches as in this case. After this long lapse of years, where the rights of others have intervened, we are not inclined to grant an injunction that will act to restrain a fair and proper use of the name “Vicente Portuondo” by the defendants in the conduct of their business, so long as no unfair or fraudulent trade use is made thereof. In other words, we do not feel called upon, under the circumstances of this case, to drive the defendants out of business and entirely cut off the annuity of the widow of Vicente Portuondo, which happens to be her sole and only support. However, Vicente Portuondo would not have had the right during his lifetime to use his own name in the cigar business in such a manner as to deceive the public into the belief that his business and the business of his brother were one and the same, or to have attracted custom to himself on the belief that his product was the same product as that of his brother, nor to have made any other tricky, dishonest and fraudulent use of his own name calculated to decoy the purchasing public under a misapprehension as to the real facts; nor would he have been allowed to use the name Portuondo, standing alone as against his brother, Juan F. Portuondo, after that brother had built up a particular and general reputation for a brand of cigars known as the Portuondo cigars, and such a use of the name would have been restrained against Vicente Portuondo if alive, and will now be restrained against others claiming under him.
    The use of the signature of Vicente Portuondo, which is an imitation of the Juan F. Portuondo signature, and the use of the labels, which are an imitation of the Juan F. Portuondo labels, as found by the court in its findings of facts' in this case, will be restrained; and, further, defendants will be restrained from the use of the signs, circulars and affidavit complained of by the plaintiffs which have been, and are now, being used in an unfair manner.

      The exhibit “ F ” in plaintiffs’ bill has elements of unfair trade competition about it which must be discontinued by the defendants, but we will not restrain the use of the picture of the head and shoulders of Yicente Portuondo. In this connection we will say that although plantation scenes were to a degree, and no doubt still are, in common use upon the labels in the cigar trade, still, the predominant features in the plantation scene used by the plaintiff are the negro with a hoe, occupying a particular pose, the overseer with an extended arm and the particular low house in the rear of the scene, and the general color effect. These features immediately attract the eye, and whether the overseer is put on horseback or on foot, or the negro with this particular pose is put on one side or the other of the óvérseer, makes but little difference. The plantation label of the defendants in several respects is plainly an imitation of this plantation label of the plaintiffs and its use must be discontinued as it now is, or in any other form, using these particular features.
    It has been urged that many of the features on the cigar box of the plaintiffs, such as the word “ Chico,” the oval mark on the top, the red and yellow paper around the edges, are markings common to many cigar boxes in general use, and, therefore, no complaint should be made of their use by the defendants in this case. While this is true, it is also true that when we find these marks of similarity between the two boxes together, with the other imitations of labels, imitation of particular wordings and the plain imitations of the signature of Juan F. Portuondo — all these things taken together justify the finding of unfair trade conduct on the part of the defendants. Of course, the defendants have the right to use the word “ Chico,” but in doing so it is not necessary for them to use exactly the same type as the plaintiffs have used, nor to place’ it on’ their boxes in exactly the same position relatively to the name of the manufacturer as the plaintiffs happen to do. We would say that the'defendants also have the right to use an oval mark, but in doing so care should be taken not to have it so’ much like the oval mark of the plaintiffs that the one would be readily taken for the other. The yellow'and red edgings are stock trimmings in general use, but taken with the other imitations of plaintiffs’ boxes; their use by the defendants, although possibly without any particular unfair intent, appears suspicious.
    The name of the' defendant corporation, “ The Yicente Portuondo Cigar Manufacturing Company,” is plainly and unquestionably an infringement on the business name of the plaintiff corporation and will be restrained as such. It was not necessary for the defendants to have taken exactly the same words and the same arrangement of words so far as at all possible under the circumstances, in order to have found a name for their corporation ; but this they have done, as plainly appears by arranging the name of the defendant corporation under that of the plaintiff 'corporation, thus:

      “ The Juan F. Portuondo Cigar Manufacturing Company.”
    “ The Yicente Portuondo Cigar Manufacturing Company.” Such a similarity in names is in prejudice of the plaintiffs’ right and will be enjoined ¿s an infringement on the business name of the plaintiff corporation.
    The plaintiffs are entitled to relief to the extent indicated in this opinion and in the findings in this case, and to that extent only.
    The chief point of similarity between the markings of the boxes of the defendants and those of the plaintiffs are present and are most noticeable in certain of the “ Chico ” size boxes, where the coloring of the labels is the same with the exception of the caution notice which on the plaintiffs’ box is printed in red, while on the box of the defendants it is printed in blue. However, the whole dressing and general appearance of these two boxes is so similar that an ordinarily careful person using due caution would be likely to be misled into buying one cigar for the other. With certain exceptions as particularly pointed out in the findings of fact, the new box of the defendants with the picture of Yicente Portuondo thereon has but few unfair markings or trimmings, but it is not shown in the testimony how extensively this new box is being used or to what extent the old box has been abandoned. The adoption of this new box, although to a degree a meritorious act on the part of the defendants, cannot be viewed without seeing therein á show of appreciation on their part of the fact that they bad been guilty of certain features of imitation in their old boxes which were to be replaced by these new ones, and, again, the placing of the word “ Registered ” on the plantation label of the defendants, when, in point of fact the label was not duly registered, looks suspiciously as though the defendants themselves appreciated the fact that they had no real right to register that particular label, as in its essential features it was an imitation of the duly registered plantation label of the plaintiffs.
    We have not overlooked the testimony as to the words “ Five cent straight ” marked on the inside ends of plaintiffs’ Chico box, and the like marking on the defendants’ box (plaintiff’s exhibit 33), nor have we overlooked the use of the brown bands around the cigars of the defendants which are like those used by the plaintiffs. But we have not been able to find any testimony to justify a finding that the plaintiffs or their predecessors adopted or used those markings prior to their use by the defendants or their predecessors.
    In reaching our conclusions in this case the letters put in evidence at page 25 of the notes have not been considered. These letters were offered together in three files containing a large number of miscellaneous written orders, for the purpose of showing that the goods of the plaintiffs were therein referred to as “ Portuondo ” cigars, so that the inference might be drawn therefrom that the plaintiffs’ cigars were popularly and generally known by that name. The fact sought to be thus established is relevant and the character of proof offered is competent, but the documents relied upon as proof in this instance were neither properly identified, nor was their history sufficiently shown, to justify the admission thereof as evidence in the case. The court further states that of all the depositions, offered at pages 6-9, and again at pages 128-131 of the notes, only the deposition of Yicente Portuondo has been considered. That particular deposition is competent as a declaration against interest, but the other depositions are not competent evidence at all in the present case.
    The several features of unfairness which have been pointed out, the infringement on the plantation trade-mark, and the imitation signature must all be abandoned by the defendant corporation, and the name of that corporation must be changed so as not to infringe on the title of the plaintiff corporation. With these changes there is not any reason why both concerns should not live and indulge in fair and honorable business competition.
    And now, July 3, 1907, it is ordered, adjudged and decreed:
    That the Yicente Portuondo Cigar Manufacturing Company, Charles EL Kors, Louis Weinberg, Theodore EL Goodwin and Nathan Schwab, the defendants, and each of them, and their and each of their servants, agents, salesmen and all persons in privity with them or any of them, be and they are hereby perpetually enjoined as follows:
    1. From using in connection with the manufacture, sale or advertisement of cigars, upon packages, boxes, cards, plates or otherwise, any representation, exactly or colorably simulating the trade-mark of the plaintiffs, The Juan F. Portuondo Cigar Manufacturing Company, called the “LaFlor de Portuondo ” mark, consisting of the word symbol “ La Flor de Portuondo,” said mark being registered in the United States patent office, August 11, 1885, No. 12,500 ; also registered in the United States patent office, December 19, 1905, No. 18,271; also registered in the office of the secretary of the commonwealth of Pennsylvania, January 23,1906.
    2. From using in connection with the manufacture, sale or advertisement of cigars, upon packages, boxes, cards, plates or otherwise any label, mark, picture, impression or representation, exactly or colorably simulating the trade-mark of the plaintiffs, The Juan F. Portuondo Cigar Manufacturing Company, called the “Matador,” said mark being registered in the United States patent office, August 11, 1885, No. 12,199; also registered in the United States patent office, December 26, 1905, No. 18,128; also registered in the office of the secretary of the commonwealth of Pennsylvania, January 29,1906; also registered in the office of the secretary of state of Illinois, October 10,1901, and there recorded in Trade Mark Record, page 155.
    3. From using in connection with the manufacture, sale, or advertisement of cigars, upon packages, boxes, cards, plates or otherwise any label, mark, picture, impression or representation, exactly or colorably simulating the trade-mark of the plaintiffs, The Juan F. Portuondo Cigar Manufacturing Company, called the “ Plantation Scene ” mark, said mark being registered in the United States patent office, December 29, 1885, No. 12,879; also registered in the United States patent office, December 19, 1905, No. 48,272; also registered in the office of the secretary of the commonwealth of Pennsylvania January 23, 1906; also registered in the office of the secretary of state of Illinois, October 10, 1901, and there recorded in Trade Mark Record, page 154.
    4. From using in connection with the manufacture, sale or advertisement of cigars, upon packages, boxes, cards, plates or otherwise, any label, mark, picture, impression or representation, exactly or colorably simulating the personal signature of Juan F. Portuondo, or the name Yicente Portuondo in script with a dash thereunder. (Exhibit “ D ” of bill and described in the eighteenth finding of fact by the court in the adjudication filed in this case.) Or the corporate title “ The Yicente Portuondo Oigar Manufacturing Company,” or the words “ genuine Portuondo,” without the word “ Yicente ” in connection and immediately before the word “ Portuondo,” such word “ Yicente ” to be in the same size and style of type as the word “Portuondo,” or the word “original” in connection with “ Portuondo,” or the advertisement set forth in the court’s thirty-seventh finding of fact, or the word “Chicos” on cigar boxes in simulation of the style or size of type used by the plaintiffs in its word “ Chicos,” or the words “ Trade-mark registered” on any matter excepting where actual registry thereof has been made, or a label in general imitation of the plaintiffs’ end label, or inside label, or the particular small white label on the front of defendants’ box with the words “The genuine Yicente Portuondo cigars are strictly Cuban hand made, and bear this label and signature Yicente Portuondo,” (described in finding of fact fifty-four by the court in the adjudication filed in this case), or the words “ none genuine without the signature of Yicente Portuondo,” (described in finding of fact forty-six by the court in the adjudication filed in this case), or the “ Trade Warning Advertisement ” set forth in the court’s finding of fact No. 39, or the affidavit set forth in the court’s finding of fact No. 40, or the words “ Only survivors of the originators making the famous Portuondo cigars,” or the words “ the late Joseph M. Portuondo, the founder of the famous brand of Portuondo cigars,” either alone or in combination with any other word or words, or any word or words, device or devices, color or colors, letter or letters, mark or marks of like import or so similar to any of the foregoing as to be calculated to deceive.

      5. From using for any purpose whatever the word “ Portuondo” unless immediately preceded by the word “Yicente” in the same size and style of letters as the word “ Portuondo.”
    6. From using any box or boxes similar in general dress and style to the boxes marked and described in the adjudication as “ Plaintiffs’ Box,” “ Defendants’ Box 1,” or “ Defendants’ Box 11,” excepting that the defendants may use the stock edging referred to in the adjudication and an oval mark on the top of the box, such mark not to contain lettering made to imitate the general effect of the mark on plaintiffs’ box.
    7. From holding out or representing in any way that the goods manufactured by the defendants are the same as those manufactured by the plaintiffs.
    8. From authorizing, doing, writing, speaking or uttering any other act, matter or thing calculated to cause confusion between the goods of the plaintiffs and the goods of the defendant, with the intention of thereby entering into and indulging in unfair trade competition against the plaintiffs.
    9. This decree in its operation is expressly limited to cigars sold by the defendants after the date of the entry hereof and is not to affect cigars in the hands of the defendants’ customers delivered before the date of this decree; the decree to be operative on all cigars manufactured by the defendants or any of them after the date of the decree and on all cigars sold by the defendants or any of them after the date of the decree.
    10. The defendants are to pay the costs of this proceeding, with the exception of the witness fees; each side to bear the cost of its respective witness fees.
    Exceptions to the adjudication by both parties were dismissed, and both parties appealed.

      Errors assigned were in the dismissal of the exceptions and the portions of the decree.

      G. Andrade, Jr., with him John E. Faunce, for the Juan F. Portuondo Cigar Manufacturing Company.
    The contract does not pretend to give Yicente Portuondo any beneficial interest whatever in the business, which was to be carried on under cover of his name.
    Now, the fact that the owner of the infringing name is given only a small interest in the infringing business, is generally accepted as evidence of fraudulent intent: International Silver Co. v. Rogers Co., 113 Fed. Repr. 526 (1/20 interest); s. c., 110 Fed. Repr. 955, (1/8 interest); Garrett v. Garrett, etc., Co., 78 Fed. Repr. 472 (a few shares); Massam v. Thorley’s Cattle Food Co., 42 L. T. (N. S.) 851 (1 share of stock); Melachrino Co. v. Melachrino Egyptian Cigarette Co., Cartmell’s Cases Relating to Trade-marks, 223 (normal interest).
    And where, as in the case at bar, the owner of the infringing name has no interest whatever in the infringing business, the presumption of fraud is all the stronger.
    The rule is well settled that a bare infringing proper name in gross, not appurtenant to any going business, is unassignable as against a senior proprietor of that proper name: Weston v. Ketcham, 51 How. Pr. 455; Heinisch’s Sons Co. v. Boker, 86 Fed. Repr. 765; Witthaus v. Braun, 44 Md. 303; Morgan v. Rogers, 19 Fed. Repr. 596; Bulte v. Igleheart Bros., 137 Fed. Repr. 492; Dixon Crucible Co. v. Guggenheim, 2 Brewst. 321; Falk v. American West Indies Trading Co., 180 N. Y. 445; Frazee v. Merchants’ Coffee Co., 106 Offi. Gaz. 2292; McVeagh v. Valencia Cigar Factory, 32 Off. Gaz. 1124; Macmahan Pharmacal Co. v. Denver Chemical Mfg. Co., 113 Fed. Repr. 468.
    The courts have held that the individual himself who was baptized with the infringing name, can be enjoined from the use of his own name: Lewis v. Langdon, 7 Simons, 421; Clark v. Clark, 25 Barb. 76; Croft v. Day, 7 Beavan, 84; Howe v. Howe Machine Co., 50 Barb. 236; Hires Co. v. Hires, 182 Pa. 346; Van Stan’s Stratena Co. v. Van Stan, 209 Pa. 564.
    Where the defendant is using his own name or that of another in a manner willfully calculated to deceive the public into belief that his goods are the goods of the plaintiff who béars the same name. This presents a state of facts that warrants the invocation of the injunctive power of equity; the decisions being practically unanimous: Bininger v. Clark, 60 Barb. 113; Robinson v. Storm, 103 Tenn. 40; Royal Baking Powder Co. v. Royal, 122 Fed. Repr. 337; Holloway v. Holloway, 13 Beavan, 209; Russia Cement Co. v. Le Page, 147 Mass. 206 (17 N. E. Repr. 304); McLean v. Fleming, 96 U. S. 245; Morton v. Morton, 82 Pac. Repr. 664; Melachrino & Co. v. Cigarette Co., Cartmell’s Cases Relating to Trade-Marks, 223; International Silver Co. v. Rogers, 67 Atl. Repr. 105.
    Tícente could not license the defendants to use his name: Heinisch v. Bolter, 86 Fed. Repr. 765; Meyer v. Medicine Co., 58 Fed. Repr. 884.
    Vicente could not endow a corporation with his name: Fort Pitt B. & L. Assn. v. Model Plan B. & L. Assn., 159 Pa. 308; Bissell Chilled Plow Works v. Bissell Plow Co., 121 Fed. Repr. 357; Higgins Co. v. Higgins Soap Co., 144 N. Y. 462; Dixon Crucible Co. v. Guggenheim, 2 Brewster, 321; Holmes et al. v. Holmes et al. Mfg. Co., 37 Conn. 278.
    The plaintiffs never acquiesced in Vicente’s acts: Lee v. Haley, L. R. 5 Ch. 155.
    The defense of laches is bad in law: Hoyt v. Hoyt, 143 Pa. 623; Tygert Allen Co. v. Tygert, 191 Pa. 336; McLean v. Fleming, 96 U. S. 245; Menendez v. Holt, 128 U. S. 514.

      John O. Bell, with him Samuel W. Salus and Adolph Eiehholz, for the Yicente Portuondo Cigar Manufacturing Company et al.
    As against the defendant the plaintiff has not the exclusive right to “ Portuondo,” especially when coupled with “Vicente:” Tygert-Allen Fertilizer Co. v. Tygert, 191 Pa. 336.
    Where the laches has been gross, or where the plaintiff has permitted the defendant to enhance the reputation of the particular brand that is claimed, in such cases the decisions have been uniform, — that a new right has been created in the defendant and the plaintiff is estopped from asserting his right, where the injunction has not been promptly applied for: Menendez v. Holt, 128 U. S. 514; Coats v. Thread Co., 149 U. S. 562; Clark Thread Co. v. Armitage, 74 Fed. Repr. 936; Wormser v. Levy, 59 N. Y. Super. Ct. 1; Prince’s Metallic Paint Co. v. Mfg. Co., 57 Fed. Repr. 938; Woodmanse et al. Mfg. Co. v. Williams, 68 Fed. Repr. 489; La Republique Francaise v. Schultz, 94 Fed. Repr. 500; Grand Lodge A. O. U. W. v. Graham, 96 Iowa, 592; Amoskeag Mfg. Co. v. Garner, 55 Barb. 151; Del. & Hudson Canal Co. v. Clark, 1 Blatchf. 112; Virginia Hot Springs Co. v. Hageman & Co., 138 Fed. Repr. 855.
    June 23, 1908 :
   Opinion by

Mr. Justice Stewart,

Neither party to this controversy is satisfied with the result reached in the court below, and as a consequence we have here two appeals from the same decree. We shall consider first that of the defendants in the proceeding below. Separate reference to each of the seventy-seven assignments of error would be impracticable. Fortunately the case does not require it. More than three-fourths of them relate to the findings of fact by the court, and the complaint with respect to each is, that it is not supported by the evidence. Following closely the line indicated by each assignment we have very carefully examined the evidence in the case. From the specific findings, seventy-one in number, the learned court reached the general conclusion that there was on the part of Vicente Portuondo a studied effort to imitate the markings, labels and general method of dressing his goods, that had been pursued by Juan F. Portuondo, with a view to profit on the magic that had already been given to the name of Portuondo by his brother; and that his course of dealing was such as constituted what is known in law as unfair trade competition, coupled with an infringement of the business name, and in some instances infringement of trade-marks to such extent as to entitle the plaintiff to relief. This general finding can be understood and applied only as certain facts connected with the history of the case are made known. Juan F. Portuondo engaged in the manufacture of cigars in the city of Philadelphia as early as 1869. In 1885 in order that his product might be distinguished from that of other cigar manufacturers, he adopted certain labels which being duly registered became his peculiar trade-marks, and these he used upon the goods made in his establishment. The cigars manufactured by him came to be known to the trade throughout the United States as La Flor de Portuondo, after one of the adopted trade-marks, or Portuondo cigars, and are so generally referred to by the purchasing public. In January, 1893, the Juan F. Portuondo Cigar Manufacturing Company, plaintiff having been incorporated, Juan F. Portuondo assigned to it the manufacturing business conducted by him, together with all the rights therein, including trade-marks, copyright labels and everything else connected therewith. Up to the time of his death in 1906 Juan F. Portuondo was president of this company, and owned a very large majority of stock interest therein. The company has continued uninterruptedly to the present in the business for which it was organized. Yicente Portuondo, a brother of Juan F. Portuondo, had been employed by the latter in his factory up to 1900, when, quitting his employment there, he engaged in the cigar business with a partner under the trade name of Yicente Portuondo. Four years later, in 1904, Yicente Portuondo filed a voluntary petition in bankruptcy and, having been adjudged a bankrupt, his property passed to the trustee. Within three days thereafter, by agreement in writing, he sold to the individual appellants for the use of the Yicente Portuondo Cigar Manufacturing Company the other appellant, a corporation to be formed later, and which was duly incorporated under the laws of New Jersey, April 28, 1904, the right to use the name Yicente Portuondo in the title of the proposed corporation. In May, 1904, defendant corporation purchased from the receiver in bankruptcy the entire stock and fixtures, including the labels and stationery of the business of Yicente Portuondo. The bill filed in the case charged an improper and illegal use by defendants of labels on their manufactured goods which infringed upon trade-marks of the plaintiffs, an improper use of the name Portuondo, and a general course of unfair trade on their part towards the plaintiff, resulting in great loss to the latter.

It may be conceded that some of the specific facts found by the court are fairly disputable; but none are without support in the evidence, certainly none which might be regarded as material. The findings with respect to those disputable are not open to review, except as manifest error is shown, and that is not the case with respect to any of them. Were these to be passed by without consideration, there would be still enough facts in the case clearly established to sustain the final conclusion of the court as above stated. The trade-marks, labels and indices employed by Yicente Portuondo speak for themselves. They were not a servile and exact reproduction of those used by Juan F. Portuondo, of whom the plaintiffs are the successors in right, but they bear such resemblance that it is impossible to reach any other conclusion than that they were designed from them, with not too much variation to prevent them from being accredited by the unobservant and unwary as the proper marks and labels of Juan F. Portuondo, intended to identify the goods of his own special manufacture, and with just enough variation to distinguish one from the other when comparison was made between them. Except as both were exposed to one at the same time, so that opportunity for comparison was afforded, either could readily be taken for the other. This was not accidental, could not have been, but was evidently the result of careful and studied effort. It is wholly immaterial in this connection that the labels and marks used by the defendants were the same that had been devised and used by Vicente Portuondo. The fact that he had not been enjoined from using them conferred no right upon appellants to use them. They were- as much infringement under his use as under theirs.

That the course of dealing pursued by Vicente Portuondo and the defendant company, in the manufacture and sale of their goods, was unfair trade competition, coupled with infringement of business name and trade-marks, is made equally evident. This finding is not dependent upon any fact open to question. The appropriation of name, the use of simulated labels, marks and designs, would in themselves be sufficient to warrant this finding; but it has far more to rest upon. The advertisements and circulars addressed to the trade by the defendants, in which claims are made calculated to create the belief that the cigars manufactured by the defendant company are the original, if not the only, Portuondo cigars, furnish convincing proof that however excellent in quality defendants’ manufactured product was, for their general acceptance in the market defendants depended far more upon the Portuondo association than upon the excellence of the goods. Value was given the name Portuondo in association with cigars, and the trade-marks and labels adopted by Juan F. Portuondo were used to distinguish cigars of his manufacture from others in the general market. The general rule is that anything done by a rival in the same business by imitation or otherwise, designed or calculated to mislead the public in the belief that in buying the product offered by him for sale, they were buying the product of another’s manufacture, would be in fraud on that other’s rights, and would afford just ground for equitable interference. That is the case here. "With respect to the measure of relief afforded the plaintiff by the restraining decree of the court, the defendants in the bill have no ground for complaint. It deprives them of nothing that they are entitled to; it simply protects the plaintiff company in the exclusive enjoyment of what it has shown itself to lawfully own.

The exceptions in this appeal, No. 397, January Term, 1907, are overruled.

We come now to consider the appeal of the plaintiff company. Here the complaint is that the decree comes short of giving the plaintiff the full measure of protection to which it is fairly and justly entitled under the evidence. The bill asked that defendants “ be restrained from using on cigars, or in relation thereto, or in connection therewith, or in the advertisement or sale thereof, the words Yicente Portuondo or Portuondo Cigar Manufacturing Company, or any colorable imitation thereof, either alone or in connection with other words or phrases.” The decree while enjoining defendants from using any of the distinctive trade-marks of the plaintiff, or devices colorably simulating them, restrains with respect to the use of the name “ Portuondo” no further than to require that when used, it shall be immediately preceded by the name “ Yicente,” in the same size and style of letters as the word “ Portuondo.” It is quite evident from the opinion filed by the learned judge who sat as chancellor, that but for supposed equitable considerations having regard to the delay on the part of the plaintiff to assert its claim to the exclusive use of the name, and the amount expended by the defendants in establishing their business under the corporate name of the Yicente Portuondo Cigar Manufacturing Company, the full measure of protection asked by the plaintiff would have been afforded. While defendants claim a legal right to use the name Portuondo under and by virtue of their agreement with Yicente Portuondo, the court bases its denial of the relief asked for by plaintiff on no such grounds, but upon purely equitable considerations. Since the appeal in all such cases is to the discretionary jurisdiction of the chancellor, such considerations as these have their proper place in the inquiry; but the question must always be as to the weight to be allowed these under the facts of the particular case.

The findings show an exclusive original right to the use of the name, in connection with the manufacture of cigars, in Juan F. Portuondo; a legal transfer of that right to the plaintiff company ; and continued prejudicial infringement of such right by the defendants. The 32d finding is as follows: “ The name adopted for this defendant corporation, to wit: The Yicente Portuondo Cigar Manufacturing Company, is so similar to the title of the plaintiff corporation, that it is likely to and has deceived the public, and thereby created a confusion between the goods of the plaintiff and of the defendants, and has thereby enabled the defendants to profit by the good reputation of the plaintiff and its predecessors, and at the expense of the plaintiff in the cigar trade. The combination of words used in this name constitutes an infringement upon the business name of the plaintiff corporation.” A very careful review of all the evidence in the case has satisfied us of the correctness of the findings of the learned judge. We have been aided much in our investigation of the case by the orderly and logical manner observed in stating these and the clearness and conciseness with which they are expressed. Accepting the facts as found, we are to inquire only into these considerations which influenced the court to deny the plaintiff the full measure of relief, which upon the facts as we have stated them above, it would seem to be entitled to. These considerations are of a purely equitable nature. They are, first, laches on the part of the plaintiff in asserting its right to the exclusive use of the name Portuondo in its business; and, second, the loss that would result to the defendants in view of the large expenditure made relying upon their right to the use of the name.

That the plaintiff here is chargeable with laches, is an inference derived by the chancellor from certain facts which admit of no dispute. Yicente Portuondo in the conduct of his separate business, until bankruptcy overtook him in 1904, persistently made use of the name Portuondo in a way that was clearly an infringement of the rights of Juan F. Portuondo. This was well known to the Tatter, who made no attempt by legal proceeding to restrain such, continued use by Yicente. It does not appear that the defendant company has to any considerable degree, if at all, enlarged upon the use of the name; but it does clearly appear, that it has continued to do all that Yicente did in this regard. Were this a proceeding by Juan F. Portuondo to restrain Yicente from using the name a chancellor might be justified in calling upon the former for some excusing explanation of his inactivity in asserting his exclusive right during all this time. We do not say that a failure in this regard would necessarily defeat his right to the protection asked, but it would certainly be a circumstance to be considered in adjusting the equities of the parties. Suppose, however, it did so result, the refusal of the court to interfere could not be construed into a recognition of any right on the part of Yicente to the use of the name. Any discussion of this case must start with the accepted fact that thé original, exclusive right, was in Juan F. Portuondo. This right in him was property, as much entitled to protection as any other species of property. He and he alone could invest another with any right in connection therewith. He might by indifference and inactivity forfeit his right to claim the protection of the law against someone’s invasion* and this incidentally would result in an unearned advantage to the invader, but it would invest the latter with no right in the property itself. While the latter would be secured against legal interference with his use of another’s property, he would have no right in the property itself which he could sell or assign to another, or which he could assert against another attempting to make common use of it with himself. His exemption from legal interference would be purely incidental to the owner’s forfeiture of right, and would be personal to himself. The mere fact that the right to protection against all other infringers would remain with the original owner, and no such right against anyone in the world could be claimed by the infringer, shows in a most conclusive way that no right of property could have been acquired by the latter. So that even though Juan F. Portuondo must have failed in any attempt to restrain Yicente from using the name in connection with his business, that fact, accepting it as a fact, establishes no right in Yicente to the thing itself. When he went into bankruptcy, and later when he attempted to sell to the defendant company the privilege of using the name in its business, the sole and exclusive ownership of the property was in those who had acquired it from and through Juan F. Portuondo, without other qualification than that the right to exclusive enjoyment of the thing as against Vicente might not be enforcible at law, because of laches on the part of the former owner. The defendants are here claiming not an immunity from interference, but a right to property derived through purchase from Vicente Portuondo. As we have tried to show, the latter had no property right in the business name, and, therefore, could convey none. By what principle of law or equity could anyone succeed to his immunity from interference by the lawful owner ? His was no right, and, therefore, was not anything that • could be transferred. It results, we think necessarily, that the defendant company is in no better position to claim advantage from plaintiff’s laches with respect to Vicente, than any other infringer would be. It will not be contended that the indulgence shown his brother in this regard interfered with Juan F. Portuondo’s right to protection against other infringers; and yet if one could have succeeded to the immunity allowed Vieente, because of an assignment from him, why not a dozen, or for that matter a hundred or more, to the utter destruction of all value in the plaintiff’s rights ? We allow the tacking of an adverse possession of the land by an occupant without right, to the subsequent possession of a purchaser, to form a bar by the statute of limitation ; and this may have suggested the application of like method here by analogy; but we are not dealing with the statute of limitations, but with an exemption from legal disturbances which, no matter how long enjoyed, could never ripen into a legal right or title. For the reasons stated we are of opinion that however guilty of laches Juan F. Portuondo may have been in allowing his brother Vicente to continue undisturbed in the use of the business name Portuondo, such laches can avail the defendants nothing, and ought not to be considered in connection with their present claim.

The other question while not one of estoppel, is closely akin to it, since it is allowed a determining effect in measuring the relief the plaintiff is entitled to, by the application of like principles. The defendant corporation in its attempt to acquire a right to the use of the name Portuondo, and in various ways enlarging its manufacturing facilities and expanding its trade, has expended large sums of money. These expenditures have been made' in the honest belief that their right to employ the name Portuondo was absolute, and by its use of the name the business of the company has increased to a profitable degree. A denial of this right at this time would most probably result in loss to the company, hardly, however, to the extent apprehended by the learñed judge, of driving it out of business. But these facts alone can create no equity in the defendants. They can avail to this end only as it is shown that the plaintiff was guilty of such negligence, in failing to assert its adverse title to the exclusive use of the name, as to lead the defendants into a mistaken belief, and that in making their expenditure defendants acted upon such mistaken belief to their prejudice. Open, affirmative encouragement on the part of the plaintiff is not pretended; encouragement by silence is what is relied upon. But what was there in the situation that imposed' on the plaintiff any duty to speak out. It was an established corporation, doing an extensive business, employing the name of Portuondo, not only in its corporate title, but on the several brands of its manufactured product. All this must have been known to the defendants who were proposing to establish a like business in the same city, through a corporation to be chartered in a foreign state, under a corporate title which would give marked prominence to the name Portuondo. Plainly here was duty resting on the defendants to make inquiry as to their rights with respect to a name thus publicly and widely employed by another. ¥e find no corresponding duty resting on plaintiff to give warning to the defendant, for the sufficient reason, if for no other, that it does not appear, certainly there is no finding to that effect, that plaintiff had any knowledge of the contract between defendants and Yicente Portuondo until after it had been formally executed, or any knowledge of defendants’ purpose to purchase the stock of Yicente, or to establish a rival. corporation with title liable to be confused with its own. Not only was there no duty on plaintiff to speak out any more distinctly than it was doing through the fact of its incorporation, but no opportunity was afforded it. Besides, it is very evident that this silence on the part of the plaintiff was not at all considered by the defendants, and in no wise induced their action. Having discussed these equitable considerations which influenced the court to deny the plaintiff the full measure of relief it asked, and having concluded that too much weight was given them, we might rest the case here; but it presents a feature which seems to have been overlooked, and which, because to our mind it outweighs every consideration of the prejudice that would result to defendant from a restraining decree, calls for some reference. Briefly, it is this,— the use by the defendant company of the name Portuondo is consistent with no honest purpose that we can discover. Defendants rest their right to the use of it on their contract with Vicente, now deceased. That contract did not introduce him as a party in the proposed business enterprise, nor did it pretend to do more than give to the defendants the right to use the ndme Portuondo in the corporate title. It gave to the defendants no trade secret, nothing that would require or enable them to manufacture for the market a product corresponding in peculiar quality to the cigar made by Vicente Portuondo, and which had given that cigar its special value, and made for it a distinct market. To what end did the defendants desire the name % What that peculiar quality in the Vicente Portuondo cigar was, we of course do not know; but that it characterized and distinguished this cigar from others is manifest from the extent of the public demand for it. The name stood as a pledge for this particular quality so long as Vicente was engaged in the manufacture, and equally a pledge that the cigars bearing his name were of his own manufacture. Neither in the contract, nor in any part of all this voluminous testimony, is there even a suggestion that defendants could produce cigars with this distinguishing quality. And yet they are to-day engaged in marketing a product of their own which the public is given to understand are Portuondo cigars. If the cigars manufactured by them have any claim to be called Portuondo cigars, other than because they are made by a corporation under a corporate name which includes the word Portuondo, we have failed to discover it. The facts are pregnant with suspicion that the purpose in acquiring the name, was to mislead and deceive the public into the belief that the cigars made by the company were made, if not under the supervision of Yicente Portuondo, at least after a formula adopted and used by him, and to which the company had succeeded. In this connection it is to be borne in mind that the doctrine of estoppel is only applied to promote justice and fair dealing; never to aid a fraudulent purpose.' Before defendants would be entitled to any benefit whatever of this doctrine to save them from loss, they would at least have to acquit themselves of the suspicion of fraudulent purpose which their transactions naturally excite. Apart from the circumstance here considered, our conclusions as to the equities 6f the case would be the same. We have referred to it only as a matter calling for at least equal consideration with those relied upon by the court. In our judgment it makes largely against the defendants in any attempt to balance the equities between the parties.

For the reasons stated in the opinion the appeal of the defendants to No. 397, January Term, 1907, is dismissed at the cost of appellants. The appeal of plaintiff, No. 306, January Term, 1907, is sustained ; and it is ordered that the record be remitted to the court below with the instructions that it be amended and enlarged so as to restrain the defendant from making any use whatever of the name Portuondo in connection with the manufacture and sale of cigars. The cost on both appeals to be paid by the defendants.

Elkin, J., dissents in No. 306, January Term, 1907.


author: Mr. Chief Justice Mitchell,

text:
    Lewis v. Link-Belt Company, Appellant.

      Will — Dying without issue — Failure of issue — Act of July 9, 1897, P. L. 213.
    Under the Act of July 9, 1897, P. L. 213, a devise to a person during his natural life, and then to his issue, “but in the event of the death of the devisee without issue,” then over, the words “death without issue,” •are to be construed to mean a want or failure of issue in the lifetime, or at the death of the devisee, and not an indefinite failure, and the devisee takes a life estate and not a fee under the rule in Shelley’s case.

      Argued March 30, 1908.
    Appeal, No. 107, Jan. T., 1908, by defendant, from judgment of O. P. No. 5, Phila. Co., Sept. T., 1907, No. 2,702, for plaintiffs on case stated in suit of John Thomas Lewis and Florence L. Watson v. Link-Belt Company.
    Before Mitchell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Case stated to determine the marketable title to real estate.
    From the case stated it appeared that the words of the will of Louisa Lewis, out of which arises the controversy in this case, are as follows :
    “ I give and devise, unto my beloved husband, James William Lewis, all my real estate and personal property .... for and during the whole term of his natural life and at the expiration thereof I give and devise the house and lot numbered 4009 Blabon Avenue in the City of Philadelphia unto my stepson, John Thomas Lewis, for and during the term of his natural life, but in the event of his death leaving issue said real estate shall go to and vest in said issue absolutely and in fee, but in the event of the death of John Thomas Lewis without issue then said real estate shall go to and vest in my stepson, Henry James Lewis, absolutely and in fee.”
    A similar devise was made to Florence Lewis, now Florence Lewis Watson, for premises No. 4011 Blabon avenue.
    The husband, James William Lewis, is now dead, and the question is : What estates did the stepson, John Thomas Lewis, and the daughter, Florence Lewis Watson, take under these devises ?
    The court, in an opinion by Martin, P. J., held that the plaintiffs took an estate tail which by the operation of the act of 1855, was converted into an estate in fee simple. He accordingly entered judgment for plaintiffs in the sum of $4,500, being the amount which the defendant had agreed to pay for the real estate in question.

      Error assigned was in entering judgment for plaintiffs on case stated.

      Hampton L. Carson, for appellant.

      George Bradford Carr, for appellees.

      June 23, 1908:
   Opinion by

Mr. Chief Justice Mitchell,

It is notable that an act making so serious a change in the previous law has received so little attention as the Act of July 9, 1897, P. L. 213. It entirely changes the presumption which formerly was in favor of an indefinite failure of issue and substitutes a statutory presumption that, in the absence of words indicating contrary intent, a definite failure is to be presumed. Its language is: “Section 1. Be it enacted, etc. That in any gift, grant, devise, or bequest of real or personal estate, the words ‘ die without issue ’ or £ die without leaving issue ’ or £ have no issue,’ or any other words which may import either a want or failure of issue of any person in his lifetime, or at the time of his death, or an indefinite failure of his issue, shall be construed to mean a want or failure of issue in the lifetime, or at the death of such person, and not an indefinite failure of his issue, unless a contrary intent shall appear by the deed, will or other instrument in whiph such gift, grant, devise or bequest is made and contained.” This is in accordance with the actual intent in the vast majority of cases and is a legislative step in the direction in which this court has been tending, to restore to its proper place the cardinal rule that actual intent is to prevail.

A strong argument was made to show that even under the old rule the intent here was to give the first taker only an estate for life. This is now supplemented by the statutory presumption and leaves no room for question.

The attention of the learned court below unfortunately was not called to this act.

Judgment reversed.


author: Mr. Justice Potter,

text:
    Neill’s Estate.

      Wills — Revocation—Subsequent marriage — Act of April 8, 1833, P. L. 249.
    A paper testamentary in character executed by an unmarried woman is revoked as a will by her subsequent marriage.

      Will — Power of appointment — Intention of donee — Deed of settlement— Trust and trustee. ■

    The intention of the donee of a power is the true criterion to determine its execution. But this intention must appear in the instrument itself.. In Pennsylvania the rule is, that the instrument must refer to the power to be executed, or actually dispose of the subject of it. When the donee of a power refers to it, or when he disposes of the subject of it by such a description as identifies it, the intent to execute it is free from uncertainty.
    An unmarried woman made a deed of trust placing one-half of her estate in the form of a spendthrift trust. She provided that after her death in default of issue or children, her estate was to go to such uses as she should by her last will and testament, or writing in the nature thereof, direct and appoint. Subsequently, she made a will by which after bequeathing certain legacies she directed that all the rest of her money should be given to her husband or the man who was to be her husband, naming him. Shortly afterwards she married the man designated in the will, and in a few months afterwards died without issue. Held, that the paper signed as a will was revoked as a will by the subsequent marriage, and that the paper, even if considered as in the nature of a will, lacked an essential to the execution of a power because not showing the intent of the person attempting to execute it, and that there was no valid exercise of the power of appointment over the portion of her estate covered by the deed of trust.
    Mitchell, C. J., dissents.
    Argued April 2, 1908.
    Appeal, No. 97, Jan. T., 1908, by George Lewis Mayer, from decree of C. P. No. 3, Phila. Co., June T., 1906, No. 2,305, dismissing exceptions to auditor’s report In re Account of Fidelity Trust Co., Trustee under Deed of Trust dated May 23, 1902, executed by Julia Macalester Neill, who afterwards intermarried with George Lewis Mayer, and died August 4, 1904.
    Before Mitchell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.

      Exceptions to report of John C. Sheahan, Esq., auditor.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in dismissing exceptions to auditor’s report.

      Charles Diddle, with him H. Alan Dawson, for appellant.
    The fact that this will was made void by her marriage within two days does not affect its validity as an instrument exercising the power of appointment: Barnes v. Irwin, 2 Dallas, 199; White v. Hart, 1 Yates, 221; Osgood v. Bliss, 141 Mass. 474 (6 N. E. Repr. 527); Heath v. Withington, 60 Mass. 497; 1 Jarman on Wills, 6 Am. ed. (1893) p. 111; Lant’s App., 95 Pa. 279.
    The power of appointment was properly executed: Porter v. Turner, 3 Serg. & Rawle, 108; Wetherill v. Wetherill, 18 Pa. 265; Coryell v. Dunton, 7 Pa. 530; Graeff v. DeTurk, 44 Pa. 527; Allison v. Kurtz, 2 Watts, 185; Jacob’s Est., 140 Pa. 368; Garman v. Glass, 197 Pa. 101; Ashburner’s Est., 33 W. N. C. 131; Attorney General v. Wilkinson, L. R. 2 Eq. Cas. 816; 1 Sugden on Powers, 417; Warner v. Life Ins. Co., 109 U. S. 357; Keefer v. Schwartz, 47 Pa. 503.
    The will in this case is assisted in its interpretation b}^ the act of 1879: Ashburner’s Est., 33 W. N. C. 131; Thompson v. Garwood, 3 Whart. 287; Aubert’s App., 109 Pa. 447.

      R. Cordon MeCouch, with him John Marshall Cest, for appellees.
    Act of June'4, 1879,- P. L. 88, relates only to the execution of powers over real and personal estate created by will.
    The will of a single woman is no doubt absolutely revoked by her subsequent marriage and it is no longer a will for any purpose: Fidelity Trust Co.’s Appeal, 121 Pa. 1; Lant’s Appeal, 95 Pa. 279; Craft’s Estate, 164 Pa. 520.
    In order that an instrument may amount to an exercise of a power of appointment, it must either expressly purport to operate as such or the intention that it shall so operate shall be clearly manifested in the instrument itself: Wetherill v. Wetherill, 18 Pa. 265; Bingham’s Appeal, 64 Pa. 345; Moss v. Penna. Co., 12 Phila. 474; Aubert’s Appeal, 109 Pa. 447.

      June 23, 1908:
   Opinión by

Mr. Justice Potter,

On May 23, 1902, Julia Macalester Neill made a deed of trust for the purpose of putting one-half of her estate in the form of a spendthrift trust. She provided that after her death, in default of issue or children, the estate was to be conveyed “ to such uses and for such estate or estates as the said grantor by any deed or by her last will and testament or writing in the nature thereof shall direct, limit and appoint and in default of such deed, will or other appointment, then to grant, assign and convey the same to such person or persons and for such estates and in such parts or shares as would be entitled to the same by the intestate laws of the Commonwealth of Pennsylvania if said grantor had died seized and possessed thereof absolutely and in fee.”

On May 3, 1904, Miss Neill made the following will:

“ When I die I want my money left as follows: Five thousand to my cousin Neill Wolfe. Five thousand to S. Clements Church, one thousand of which to be given by them to missions. Three thousand to be paid yearly to my aunt, Matty D. Neill until her death when the capital shall go to my husband. All the rest of my money to be given to my husband (or the man who is to be my husband) George Lewis Mayer. I want him (my husband) to see that Mrs. Haas is never in want and to give her one hundred ($100) for me.

“Julia M. Neill.”

On May 5, 1904, she was married to George Lewis Mayer; on August 4, 1904, she died without issue. The auditor and the court below held that the power of appointment reserved by the deed of trust, was not exercised. Clearly the paper signed by Miss Neill on May 3, 1904, is not her will; for, under the provisions of section 16 of the Act of April 8, 1833, P. L. 249, it must be deemed to have been revoked by her subsequent marriage. And, as the court below points out, even if it be considered as a paper in the nature of a will, yet it lacks an essential to the execution of a power, in that the paper itself does not show the intent of the person attempting to execute the power. The language relied on to sustain the appointment is: “All the rest of rr^ money to be given to my husband (or the man who is to be my husband) George Lewis Mayer.” There is an entire absence of any reference to the power which it is claimed she intended to exercise, and there is no description of the property which would identify it with that included in the trust deed. In Bingham’s Appeal, 64 Pa. 345, Justice Agnew said (p. 349): “It may be admitted that the intention of the donee of a power is the true criterion to determine its execution. But this intention must appear in the instrument itself. In Pennsylvania the rule is, that the instrument must refer to the power tobe executed, or actually dispose of the subject of it: Wetherill v. Wetherill, 18 Pa. 265; Thompson v. Garwood, 3 Whart. 287; Mekonkey’s Appeal, 13 Pa. 253; Keefer v. Schwartz, 47 Pa. 503; Commonwealth v. Duffield, 12 Pa. 277; Heffernan v. Addams, 7 Watts, 116. When the donee of a power refers to it, or when he disposes of the subject of it by such a description as identifies it, the intent to execute it is free from uncertainty.” But both of these requirements are lacking in the present case. Nor can it be said that the paper is meaningless unless it be held to refer to the trust estate; for it seems that only one-half of Miss Neill’s estate was put into the trust, and she had at the time of her death a considerable estate, which was subject entirely to her own personal control and disposal, outside of that which had been placed in trust. We see no reason why the paper in question may not be regarded as an intended disposition of her property which was not included in the trust.

As the Act of June 4, 1879, P. L. 88, providing for the execution of powers over real and personal estate by the person in whom such powers are vested, is limited in its operation to the execution of powers by will, it does not aid in any way the contention of counsel for appellant.

The specifications of error are overruled.

The decree of the court below is affirmed, and this appeal is dismissed at the cost of appellant.

Mitchell, C. J., dissents.


author: Me. Justice Stewaet,

text:
    Kasarda v. Lehigh Valley Railroad Company, Appellant.

      Negligence — Railroads—“Stop, look and listen” — Grade crossings— Obscurity of view — Evidence—Contributory negligence.

    In a grade crossing accident case where there is no agreement among the witnesses as to what were the actual conditions with respect to sight and hearing at the time, and when these conditions are what the case turned on, they can be determined only by the jury.
    In an action against a railroad company to recover damages for personal injuries sustained at a crossing, plaintiff testified that when he reached the crossing a train of coal cars was passing west on the track furthest from him, and that he stopped when within two or three yards of the nearest track, and there waited until the last car of the coal train had passed beyond the crossing for a distance of twenty-five feet; that before starting from this point he looked up and down the track and listened, and not seeing or hearing signal or warning of an approaching train, he advanced upon the track immediately in his front and was struck just as he reached the farthest rail by the engine of an east bound passenger train. Plaintiff and his witnesses testified that the obstruction of view was due to the darkness of the morning, and the snow and wind then prevailing. Two of defendant’s witnesses testified that the obstruction of the view was due to the smoke and dust from the coal trains. Defendant claimed that it was the steam and smoke that obstructed the view, and that plaintiff should have waited until these had lifted. Held, that as the evidence was conflicting as to what in fact caused the obstruction of the view, the question of plaintiff’s contributory negligence was for the jury, and that a verdict and judgment for plaintiff should be sustained.
    Argued. April 13, 1908.
    Appeal, No. 313, Jan. T., 1907, by-defendant, from judgment of O. P. Luzerne Co., Oct. T., 1905, No. 737, on verdict for plaintiff in case of Joseph Kasarda, parent in his right and for and in behalf of his son, John Kasarda, in his and their own right, v. The Lehigh Valley Railroad Company.
    Before Mitchell, O. J., Fell, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Ferris, J.
    The facts are stated in the opinion of the Supreme Court.

      Yerdict and judgment for John Kasarda for $2,333:33 and for Joseph Kasarda for $1,583.95. Defendant appealed.

      Error assigned among others was in giving binding instructions for defendant.

      J. B. Woodard, of Wheaton, Darling & Woodard, for appellant.
    If the view be obstructed by a passing train, one should remain until the view of the track is clear, otherwise he is chargeable with contributory negligence: Kraus v. Penna. R. R. Co., 139 Pa. 272; Moore v. Phila., etc., R. R. Co., 108 Pa. 349; Marland v. R. R. Co., 123 Pa. 487; Penna. R. R. Co. v. Mooney, 126 Pa. 244; Hughes v. Canal Co., 176 Pa. 254; Hovenden v. Penna. R. R. Co., 180 Pa. 244.

      Thomas F: Farrell, with him Edward A. Lynch and Hugh A. Shovlin.

    The line of cases by which the case at bar is ruled is exemplified by such cases as Howett v. Phila., Wilmington & Baltimore R. R. Co., 166 Pa. 607; Ragan v. Penna. R. R. Co., 189 Pa. 572; McCusker v. Penna. R. R. Co., 198 Pa. 540; Bard v. Phila. & Reading Ry. Co., 199 Pa. 94; Ayers v. Pittsburg, etc., R. R. Co., 201 Pa. 124; Doud v. R. R. Co., 203 Pa. 227; Cromley v. Penna. R. R. Co., 211 Pa. 429; Schwarz v. D., L. & W. R. R. Co., 211 Pa. 625; Kreamer v. Perkiomen R. R. Co., 214 Pa. 219 and Byron v. Central R. R. Co., 215 Pa. 82.
    June 23, 1908:
   Opinion by

Me. Justice Stewaet,

John Kasarda, one of the plaintiffs, a young man about seventeen years of age, in attempting to cross the tracks of the defendant company’s road at a public crossing, at an early hour, before it was yet day, and while it was snowing, was struck by a passing engine and seriously injured. The plaintiff testified that when he reached the crossing a train of coal cars was passing west on the track furthest from him, and that he stopped when within two or three yards of the nearest track, and there waited until the last car of the coal train had passed beyond the crossing for a distance of twenty-five feet; that before starting from this point he looked up and down the track and listened, and not seeing or hearing signal or warning of an approaching train, he advanced upon the track immediately in his front and was struck just as he reached the farthest rail by the engine of an east bound passenger train. The fact that there was a passing train on the second track beyond when plaintiff reached the crossing, is without significance except as the noise and escaping smoke and steam contributed to make the situation more perilous to one attempting to cross over at the time, by interfering with hearing and sight. We have but a single question to consider: — Was contributory negligence on part of the plaintiff so apparent from the evidence as to preclude recovery? Appellant’s contention is that, accepting plaintiff’s statement as to his position and surroundings before he advanced upon the track, it was not the darkness of the morning, or the condition of the weather, that prevented him from seeing and hearing the approaching train, but the escaping smoke and steam from the engine attached to the coal train, and the noise made by that train in its movement. To this state of facts counsel would apply the doctrine asserted in Kraus v. Pennsylvania Railroad, 139 Pa. 272, that when a traveler’s view is obstructed by a passing train, it is his duty to remain at a safe distance until his view of the track is clear. Doubtless it sometimes occurs that smoke and steam from a passing train obstruct the view of the railroad tracks quite as much as the moving cars. When this is the case, it may be the duty of the traveler — depending always on conditions at the time — to await the lifting or removal of the obstruction; but to say that such a duty rested on the plaintiff here, is to beg the question. The argument proceeds on the assumption that it was an admitted or established fact in the case, that but for the smoke and steam the plaintiff could have seen the train approach, and but for the noise he could have heard it, both in ample time to be warned of the danger and escape it. Such fact was neither admitted nor established. Plaintiff and his witnesses testified that what obscured the situation was the darkness of the morning ajnd the wind and snow that prevailed. Not one of them attributes the obscurity to steam or smoke; and while all testified that no signal of the approach was given-, none speak of conditions interfering with their hearing, had any signal been given ; nor were they inquired of with respect to any such conditions, even on cross-examination. The evidence with respect to the steam as an obstruction to view was confined to the testimony offered on part of the defense, and rests largely, if not wholly, upon the testimony of the engineer and fireman on the engine that struck the plaintiff. They testified that the steam from the passing train hung low upon the track, and prevented them from seeing the plaintiff before the engine was upon him.' Not only is this testimony directly at variance with that of plaintiff’s witnesses, but it is somewhat difficult to reconcile it with that of other witnesses for the defense, who say that they saw the train approach when 250 feet away. The intervening cloud of steam would be quite as likely to obstruct on the one side as on the other. The fact that it was a very stormy morning, as all the witnesses testified, and the wind was blowing in the same direction as the coal train was moving, only adds to the difficulty. Be that as it may, there was no agreement among the witnesses as to what were the exact conditions with respect .to sight and hearing at .the time, and these being what the case turned on, they could be determined only by the jury. Any fuller discussion of the facts of the case is unnecessary. The only question submitted for our consideration, as stated by the appellant, is whether the plaintiff’s failure to wait until the coal train which arrested his further progress on the highway the morning he was injured, had passed more than .twenty-five feet beyond the crossing, was contributory negligence.” In view of the conflicting evidence in regard to the situation and conditions at the time of the accident, and the circumstances surrounding, this was a question for the jury. The court below very properly so held.

The assignments of error are overruled and the judgment is affirmed.


text:
    Cavanaugh, Appellant, v. Avoca Coal Company.

      Negligence — ■Master and servant — Mining company — Explosion of toiler — Inspection—Evidence—Act of June 2, 1891, art. 5, sec. 1, P. L. 176.
    In an action against a mining company to recover damages for the death of one of its employees caused by the explosion of a boiler, where the only negligence alleged was a lack of proper inspection, a judgment is properly entered for the defendant where the evidence shows that the boiler, although second hand, had been purchased from a reputable dealer under a guaranty, that both the dealer and the defendant had it carefully inspected and tested it before the purchase, and that thereafter it had been examined every six months by a qualified person within the meaning of the Act of June 2, 1891, art. 5, sec. 1, P. L. 176, that it had been inspected between three and four months before the explosion and reported in good condition and there was nothing to show that the defendant used the boiler while in dangerous or defective condition.
    Argued April 13,1908.
    Appeal, No. 322, Jan. T., 1907, by plaintiff, from judgment of C. P. Luzerne Co., May T., 1904, No. 126, for defendant non obstante veredicto in case of William Cavanaugh and Catharine Cavanaugh v. Avoca Coal Company.
    Before Mitchell, C. J., Pell, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s son. Before Wheaton, J.
    The facts are stated in the opinion of the Supreme Court.

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

      Paul J. Sherwood, of Sherwood da Hess, with him Wm. H. Hines and Edward Lynch, for appellants.
    The act of 1891 imposes no duty of obedience to a statutory officer on the mine owner, compels no hiring of a particular official therein created, takes away none of the owners’ rights of control, provides no punishment for running engines or boilers without a certificate under seal from said official, fails to certify to inspector’s competency, authorizes no punishment by imprisonment of owner upon disregard of its provisions, permits the owner to employ and pay a man concerning whose qualifications he is the sole judge, and, lastly, does not require the man so employed to be under bond or subject to a duty to an3'one but the owner who employs him : Gulla v. Lehigh Valley Coal Co., 28 Pa. Superior Ct. 11; Anderson v. Mfg. Co., 207 Pa. 106; McNeil & Bro. Co. v. Steel Co., 207 Pa. 493; Ross v. Walker, 139 Pa. 42; Prescott v. Engine Co., 176 Pa. 459.
    Furthermore, the question of mine inspector’s competency under the act of 1891 is a burden of proof upon the employer, not of disproof upon the injured servant: Anderson v. Hays Mfg. Co., 207 Pa. 106.
    The act of 1891, art. Y, sec. 1, neither changes nor enlarges the common law. The master’s duty always was to keep his boilers in “ good order,” and to have them examined at reasonable intervals. This is a duty imposed on the master before the employee is subject to its risk, and relates to the construction of the plant. Where this duty must be discharged through an officer or agent such officer or agent represents the principal, and his act is the act of the principal. The defendant was bound by the common law and by the act of assembly to see that his boilers “ were kept in good order ” before its machinery was set in motion and its servants subject to danger : Gulla v. Lehigh Valley Coal Co., 28 Pa. Superior Ct. 11; Schiglizzo v. Dunn, 211 Pa. 253; Lillie v. Am. Car & Foundry Co., 209 Pa. 161; McNeil v. Steel Co., 207 Pa. 493; Marsh v. L. V. R. R. Co., 206 Pa. 558; Prescott v. Ball Engine Co., 176 Pa. 459; Ross v. Walker, 139 Pa. 42; Lewis v. Seifert, 116 Pa. 628; Penna., etc., Canal & R. R. Co. v. Mason, 109 Pa. 296.

      John MoGahren, with him P. A. O'Boyle, for appellee.
    The operator of a coal mine fulfills the measure of his duty to his employees if he commits his work to careful and skillful bosses and superintendents, who conduct the same to the best of their skill and ability : Waddell v. Simonson, 112 Pa. 567; Snodgrass v. Steel Co., 173 Pa. 228; Redstone Coke Co. v. Roby, 115 Pa. 364; Anderson v. Hays Mfg. Co., 207 Pa. 106.

      June 23, 1908 :
   Opinion by

Mr. Justice Potter,

In this action the parents of Malachi Cavanaugh sought to recover damages for his death, which they alleged was the result of the negligence of the defendant company. Cavanaugh was twenty-three years of age, unmarried and lived writh his parents. He was ’employed by the defendant, the Avoca Coal Company, Limited, at its colliery at Avoca, Luzerne county, Pa., as fireman in the boiler house. On July 17, 1903, about 7 a. m., one of the boilers in charge of Cavanaugh exploded, and he was killed. It was alleged by plaintiffs that the explosion was due to the negligence of defendant. The boiler which exploded was one of a group of seven and was the last of the seven installed in defendant’s works. It was purchased second hand, about March, 1899, and used by defendant about four years and four months. Plaintiffs charged that the boiler was not in good condition when purchased, and that it was not properly inspected, 'and that it was never fit for use while in defendant’s possession, and that if it had been properly inspected its condition would have been discovered and the explosion would not have occurred.

- Defendant denied that the boiler was unsafe and contended that the explosion was due to low water caused by the neglect of Cavanaugh himself to fill it at the proper time. The company also alleged that the boiler had been regularly inspected and reports made every six months, in compliance with the requirements of the Act of June 2,1891, art. 5, sec. 1, P. L. 176, the inspection being made by Edward Newlin, an employee of defendant, who was claimed to be “ a qualified person ” within the meaning of the act. An inspection was made on April 1, 1903, between three and four months before the explosion, and Newlin then reported the boiler as safe and in good condition.

The -trial judge refused a request to give binding instructions for defendant, and submitted the case to the jury, who found a verdict for plaintiffs. Subsequently upon a motion for judgment non obstante veredicto, the court entered judgment for the defendant. Its action in so doing is here assigned for error by plaintiffs. It appears from the evidence that the defendant company purchased the boiler from Mr. Touhill, a reputable dealer, under a guaranty that it could be safely used at a working pressure of 100 pounds of steam to the square inch. That before selling it to the defendant Mr. Touhill had the boiler tested by the hydrostatic test, at a pressure of 150 pounds, and found it all right. In addition to this Mr. Newlin, an expert machinist and master mechanic, was employed by the defendant to examine and test the boiler before it was purchased ; and he made an examination and tested it by what is known as the “ hammer test; ” and reported the boiler as satisfactory. Afterwards, while the boiler was in use, it was examined every six months for the purpose of making a report to the mine inspector. We do not find anything in the evidence to indicate that Mr. Newlin, the inspector, was incompetent or that he was not a proper person to have the oversight and care of the boiler. On the contrary, the evidence is positive that he was competent for the work, and that he was selected for that purpose with care and judgment. As the learned judge says, “ There is nothing in the evidence to show that these various inspections and examinations were made in a perfunctory and careless manner; nor is there anything in the evidence to show that the defendant company, being the owner of such boiler, relied for its information as to the condition of said boiler, upon anyone except the qualified inspector selected and by them designated pursuant to the act of assembly, for the purpose of inspecting and examining the same.” We find no evidence in the case of any lack of proper inspection or care. On the contrary, it appears that everything which the knowledge of a careful and prudent man could suggest in the care and maintenance of the boiler, was done. If there was anything in the evidence tending fairly to show that the owner used the boiler while in a dangerous or defective condition, it would of course be answerable for any damages resulting therefrom, but there is an entire absence of any such testimony.

The evidence does disclose circumstances from which other reasons for the explosion, than those alleged by plaintiffs, may fairly be inferred. It may have been owing to failure to supply water to the boiler at proper intervals, or to the fireman permitting the boiler to become overheated and then admitting cold water. But whatever may have been the cause, it is sufiicient to say that, in so far as concerns the allegation that the explosion was due to the lack of competent and careful inspection and examination of the boiler by the representatives of the defendant company, there was not sufficient evidence to justify the submission of the question to the jury. We find no conflict of evidence as to any material fact, or any reason why there should not have been a binding instruction in favor of the defendant.

We agree with the conclusion reached by the court below, and the judgment is affirmed.


text:
    Birkbeck v. Wadsworth, Appellant.

      Will — Devise—Life estate or fee — “Held in reserve.”

    Where a testator directs that all his real estate shall be converted into cash, with the exception of a property specifically described, “ which shall be held in reserve for my widow,” the widow takes an estate in fee in the property reserved to her, in the absence of any devise over, or of anything showing a contrary intent.
    Argued April 14,1908.
    Appeal, No. 334, Jan. T., 1907, by defendant, from judgment of C. P. Luzerne Co., May T., 1905, No. 430, for plaintiff on case stated in suit of Mary Birkbeck v. Eleanor Wadsworth.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Case stated to determine marketable title to real estate.
    From the case stated it appeared that the plaintiff, who was tbe widow of Joseph Birkbeck, claimed title to the property in question, at the corner of Dana and Grove streets in the city of Wilkes-Barre, under a clause in her husband’s will which was as follows :
    “ It is my desire that all bonds and stock shall be taken at their face value and all real estate shall be converted into cash, with the exception of the property at the corner of Dana and Grove streets, which shall be held in reserve for my widow together with all household utensils, except piano and music which I desire to be set apart for my step-daughter for her sole and separate use.”

      The court, in an opinion by Eerris, J., held that the widow took a title in fee, and entered judgment in favor of the plaintiff for $8,000. Defendant appealed.

      Error assigned was entry of judgment for plaintiff on case stated.

      S. J. Strauss, for appellant.

      George R. Bedford, with him Lawrence B. Jones, for appellee.

      II. W. Palmer and G. O. Stroh, for the heirs of Joseph Birkbeck, deceased.
    June 23, 1908:
   Opinion by

Mr. Chief Justice Mitchell,

If the testator had devised the house to his wife and then directed the conversion of all the rest of his real estate, there would have been no doubt, and yet the meaning is clearly the same. What he said was that the real estate should be converted into cash with the exception of the property at Dana and Grove streets, which should be “ held in reserve for his widow.” The expression, “ held in reserve,” is not apt, nor in itself entirely clear, but the testator certainly meant the house was not to be converted. His wife was to have it, and the expression, “ held in reserve,” must be taken as equivalent to what he said about the piano for his daughter, that it was to be “ set apart ” for her. It being clear, therefore, that he meant the house to go to his wife in the first instance, the statutory presumption is that his entire estate in it passed to her. There is no devise over or anything showing contrary intent.

Judgment affirmed.