author: Mb. Justice Brown, Me. Justice Dean,

text:
    Oughton, Appellant, v. Black.

      Election law—Constitutional law—Marking ballots—Straight party vote— Freedom and equality of elections—Constitution of Pennsylvania, sec. 5, art. 1, Acts of June 10, 1893, P. L. 419, and April 29, 1903, P. L. 338.
    The proviso in the fourteenth section and the clause in the twenty-second section of the Ac't of June 10,1893, P. L. 419, amended by the Act of April 29, 1903, P. L. 338, relating to the marking of the ballots for a straight party vote do not violate sec. 5, art. 1, of the constitution of Pennsylvania, which declares that “elections shall be free and equal.”
    The fact that the elector who votes a straight party ticket may prepare his ballot more quickly than one who does not, does not in any way interfere with the freedom and equality of elections within the meaning of the constitution.
    Dean, Mestbezat and Thompson, JJ., dissent.
    Argued Oct. 12, 1904.
    Appeal, No. 214, Jan. T., 1904, by plaintiffs, from decree of C. P. No. 5, Phila. Co., June T., 1904, No. 1127, dismissing bill in equity in case of John Oughton, J. Claude Bedford, John Story Jenks, Walter C. Lippincott and Walter F. Hall v. Hugh Black, Jacob Wilde-more and Charles P. Donnelly, city commissioners.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestbezat, Potteb and Thompson, JJ.
    Affirmed.
    Bill in equity for an injunction.. Before Ralston, J.
    From the record it appeared that the complainants were eandidates for several offices in tbe city of Philadelphia. The bill prayed “ for an injunction to restrain the defendants from printing the ballots for the election to be held on November 8, 1904, in the county of Philadelphia in such form that ‘ there shall be printed on the extreme left of the ballot, and separated from the rest of the ballot by a space of at least one half inch, a list of the names of all the political parties or groups of nominees represented on such ballot, and presenting candidates to be voted for at such election,’ and so printed that ‘ a square, of sufficient size for the convenient insertion of a cross mark, shall be placed at the right of each party name or appellation.’ ”
    The defendants demurred to the bill..
    The court in an opinion by Ralston, J., sustained the demurrer and dismissed the bill.

      Error assigned was decree dismissing the bill.

      Charles C. Binney and George W. Guthrie, with them Clinton Rogers Woodruff, Charles H. Bergner and N. Dubois Miller, for appellants.
    The legislature is empowered to regulate the method of voting at elections, but only to secure equality, not to destroy it: Independence Party Nomination, 208 Pa. 108.
    The provision that “elections shall be equal” means that all qualified voters ai'e entitled to equal facilities for voting, and all candidates to equal facilities for receiving votes, in as far as the law undertakes to regulate such facilities: Wood’s App., 75 Pa. 59; Com. v. Reeder, 171 Pa. 505; People v. Hoffman, 116 Ill. 587 (5 N. E. Repr. 596).
    The relief sought is warranted by precedent: Eaton v. Brown, 96 Cal. 371 (13 Pac. Repr. 250); Craig v. Brown, 114 Cal. 480 (46 Pac. Repr. 870); Com. v. Martin, 6 Pa. Dist. Rep. 645.
    No precedent for refusing the relief sought can be found in any state whose constitution requires that “ elections shall be equal.”

      Alex. Simpson, Jr., for appellees.
    The act is constitutional: Independence Party Nomination, 208 Pa. 108; DeWalt v. Bartley, 146 Pa. 529; Patterson v. Barlow, 60 Pa. 54; Wood’s App., 75 Pa. 59; Com. v. Reeder, 171 Pa. 505; Cohens v. Virginia, 19 U. S. 264; Earp v. Cummins, 54 Pa. 394; Allen v. Glynn, 17 Colorado, 338 (29 Pac. Repr. 670); Ritchie v. Richards, 14 Utah, 345 (47 Pac. Repr. 670); Todd v. Election Commissioners, 104 Mich. 474 (62 N. W. Repr. 564); State v. Anderson, 100 Wis. 523 (76 N. W. Repr. 482); People v. Hoffman, 116 Ill. 587 (5 N. E. Repr. 596); Moers v. Reading, 21 Pa. 188.
    May 8, 1905:
   Opinion by

Mb. Justice Brown,

At the threshold of the elaborate- argument in support of their appeal the appellants distinctly admit that the Act of June 10,1893, P. L. 419, as amended by the Act of April 29, 1903, P. L. 338, is “ perfectly complete and perfectly constitutional, ” if a proviso in the amended fourteenth section and a clause in the twenty-second section, as amended, be eliminated. The proviso is: “ Provided further, that each voter may have the opportunity of designating his choice for all the candidates, as nominated by one political party, there shall be printed on the extreme left of the ballot, and separated from the rest of the ballot by a space of at least one-half inch, a list of the names of all the political parties or groups of nominees, represented on such ballots and presenting candidates to be voted for at such election. Such names shall-be arranged in the order of the votes obtained, at the last presidential election, by the candidate at the head of the respective tickets of the parties or bodies nominated, beginning with the party that received the highest vote cast. Following the names of such political parties, shall be the names of the parties or principles not presented on the ballot at the last presidential election, arranged alphabetically, according to the party name or political appellation. A square, of sufficient size for the convenient insertion of a cross-mark shall be placed at the right of each party name or appellation. Every mark within such square shall be equivalent to a mark against every name designated by that political appellation, or party name, including candidates nominated by more than one party, or group of citizens. At the head of every ballot shall be printed the following instructions : ‘ To vote a straight party ticket, mark a cross (X ) in the square opposite the name of the party of your choice, in the first column. A cross-mark in the square opposite the name of any candidate, indicates a vote for that candididate.’ ” The clause in the twenty-second section, as amended, is: “ If he desires to vote for every candidate of a political party, he may make a cross-mark in the appropriate square, opposite the name of . the party of his choice, in the straight party column on the left of the ballot, and every such cross-mark shall be equivalent to a vote for every candidate for the party so marked.”

The position of the appellants, as they themselves announce it, is: “ It is these provisions giving to voters who wish to vote for all the candidates of one political party the special privilege of doing so by a single cross-mark which occasions the inequality of which the appellants complain, and are also unconstitutional as authorizing a method of voting for political parties, not for men. Without these provisions the act is perfectly complete and perfectly constitutional, so that complete relief can be given by simply declaring the unconstitutionality of these particular provisions without touching the rest of the act. ... It is this special privilege given to straight-ticket voters and denied to others which injures the plaintiffs, who, as candidates, are opposed by other candidates who can be much more easily voted for. . . . The appellants do not seek to have the whole amended act of 1893 set aside, nor even any single integral feature of that act, but merely to have a single provision, a wholly superfluous and unconstitutional excrescence, declared to be void, this provision being found in two sections only, and its elimination from the act leaving the rest complete in itself and perfectly effectual for the purpose of regulating elections in a constitutional method.”

The proviso and clause are assailed as being unconstitutional because, it is contended, they interfere with the freedom and equality of elections, sec. 5, art. I, of the constitution being “ elections shall be free and equal.” The single narrow question before us is, Does the manner in which an elector is permitted by the statute to designate the ticket for which he wishes to vote interfere with the freedom and equality of elections ?

By declaring that elections shall be free and equal the constitutional guaranty is not only that “ the voter shall not be physically restrained in the exercise of his right by either civil or military authority: ” Com. v. Reeder, 171 Pa. 505; but it is that by no intimidation, threat, improper influence or coercion of any kind shall the right be interfered with. The test of the constitutional freedom of elections is the freedom of the elector to deposit his vote as the expression of his own unfettered will, guided only by his own conscience as he may have had it properly enlightened. Tried by this, the only test, it cannot reasonably be said that because one voter may more quickly prepare his ballot than another the election is not free to both alike. Each votes as freely as the other, but, in doing so, the one who, in a spirit of independence, and in the exercise of his absolute right to be independent, makes up bis own ballot, must and does consume more time than the other. This, however, is no interference with his freedom as an elector. It is the very freedom of the election that enables him to mark his ticket just as he pleases, or to make it up without regard to any name that may appear as a candidate on the ballot handed to him. This need be pursued no further and the only question to be considered is the alleged inequality of elections.

Wha,t is the real complaint of the appellants ? Whether we confine ourselves to their bill, beyond which we ought not to go in looking for it, or search for it in the elaborate briefs of their learned counsel, it is not that the acts of 1893 and 1903 deprive them, as candidates, of the right to be voted for by qualified electors, or that the latter are deprived of the right to vote. It is simply that certain electors in going into the election booths, possessing no higher, but just the same right to freely cast their votes and have them counted that every other elector in the commonwealth possesses, may mark their tickets more readily and quickly than the elector who, in wishing to assert his absolute right of independence of any political party, makes up his own ticket, and, in doing so, necessarily is required to consume more time. In other words, because those voters who insist upon making up their own tickets, as is their unquestioned right, must necessarily make a number of marks, the contention of the appellants is that elections are not equal if other electors may indicate the candidates of their choice by making fewer marks. Because some in giving expression to a freeman’s will must make a number of marks, the position of the appellants, as logically understood, is that elections are not equal unless the rest of the electors, satisfied with party nominations and willing to vote for political candidates named, are required to spend as much time in marking their ballots. This is not the test of inequality. Each individual voter as he enters the booth is given an opportunity to freely express his will with no one by him to influence or intimidate him, and from the face of the ballot he is instructed how to mark it. If unable to understand the instructions, a qualified elector of the district, selected by himself, may enter the voting apartment and assist him. This is the right given to every elector, and, therefore, is an equal one.

The free and equal exercise of the elective franchise by every ! elector is not impaired by the statute, but simply regulated. A regulation for the convenience of certain electors providing that they may,—not must,—if they desire to vote a straight party ticket, vote for it by marking a cross in the square opposite the name of the party of their choice is not inequality as against these complainants. They have the right to vote in precisely the same way for all of the candidates on the Municipal League ticket. If they wish to vote for offices for which candidates are not named on their ticket, they not only have the right to do so, but can do so by making the proper marks on the ballot, or writing out the names of their choice. The straight party man—the voter who, as a rule, votes his straight party ticket—may, if unwilling to vote for the ticket named by his party, omit the cross opposite the party name, and by separate marks on the party ticket indicate those candidates on it for whom he will vote, marking on other tickets those for whom he wishes to vote, instead of the candidates named for the same offices on his party ticket. This is the right of every member of the Municipal League with their ticket as printed on the ballot, and the voters belonging to that party can do just what the voters of any other party can do.

There is a provision in the act of 1903 that the voter may write his ballot, and of this the appellants do not complain, for they admit that the act is perfectly complete and constitutional, if the proviso and clause quoted are struck down. Unless there was such provision to enable the voter, not satisfied to vote any ticket on the ballot or for any names appearing on it, to make up an entire ticket of his own choice, the election as to him would not be equal, for he would not be able to express his own individual will in his own way: Independence Party Nomination, 208 Pa. 108. But what makes the election equal to him—the privilege of writing the name of every candidate for whom he would vote—would have to be regarded as an inequality, if the contention of the appellants is just. They complain of inequality because an elector, in marking his ticket from the names found on the official ballot, cannot make it up as readily and quickly as the voter who is given the privilege of voting a straight ticket by making a single mark. But how much more inconvenient is it, and how much more time must necessarily be consumed when an elector makes up his whole ticket by writing the names of those for whom he Avould vote. If marking is inequality, writing is more so. The whole matter is but a regulation, working no inequality, but preserving the equal right to vote.

Cases outside of this state have been cited by both sides in support of their respective positions. The one on which appellants place their main reliance is Eaton v. Brown, 96 California, 371. The constitution of that state directed that all laws of a general nature should have a uniform operation. In the statute regulating elections in force in 1892 there was a provision allowing names of political parties which had filed certificates of nomination to be printed at the head of the official ballots, and that all candidates of a party might be voted for by a mark opposite its name, but a ballot, if so marked, was not to be counted if stamped in any other place. This provision was declared to be unconstitutional for the reason that it was “ an attempt to discriminate against classes of voters, and its effect, if allowed to be valid, would be to subject such classes to the alternative of partial disfranchisement, or to the casting of their votes upon more burdensome conditions than •others, no better entitled under the fundamental law to the free and untrammeled exercise of the right of suffrage.” What was said by the supreme court of California apparently sustains appellants’ contention as to inequality under our ballot law, but, in our view, there is no inequality in elections conducted under it. The constitution of Michigan provides that “ laws may be passed to preserve the purity of elections and guard against abuses of the elective franchises.” By a statute in that state' no name could appear more than once on the ballot. If a candidate was named by more than one political party he was put in the column of that one from which the board of election commissioners had first received notice of his nomination. In Todd v. Election Commissioners, 104 Mich. 474, it was claimed as a reason for the unconstitutionality of the act that certain voters would have to mark their ballots more than once, if they wished to vote a full ticket, while others would only be required to make one mark. The supreme court of the state said that if the effect of the act, as was strenuously argued, was to subvert or impede the right to vote, it was clearly unconstitutional, but added: “ The constitution does not guarantee that each voter shall have the same facilities with every other voter in expressing his will at the ballot box, or, to apply the rule to the present case, it does not guarantee to each voter the right to express his will by a single mark.

The constitutionality of the law is not to be tested by the fact that one voter can cast his ballot by making one mark, while another may be required to make two or more to express his will. When each has been afforded the opportunity and been provided with reasonable facilities to vote, the constitution has been complied with. All else is regulation, and lies in the sound discretion of the legislature, to-whom alone such regulation is committed. Courts cannot hold such provisions unconstitutional because, in their judgment, they are harsh or unwise, or have their origin in partisan purposes. Constitutional laws often have their origin in such purposes, and unconstitutional laws are often based upon pure motives and honest intentions. Courts have nothing to do with the motives of legislators, nor the reasons they may have for passing the law. The polar star of interpretation to guide them is the language of the constitution itself, and the sole question always is, does the law destroy or abridge the right?” In the State ex rel. Runge v. Anderson, 100 Wis. 523; Ritchie v. Richards, 14 Utah, 345, and People ex rel. v. Hoffman et al., 116 Ill. 587, similar views seem to have been entertained. In the latter case it was said “ elections are equal, when the vote of every elector is equal, in its influence on the result, to the vote of every other elector, when each ballot is as effective as every other ballot.” In DeWalt v. Bartley, 146 Pa. 529, the question raised on this appeal was not before us, but what is there said as to the argumentum ab inconvenienti is pertinent here.

What the legislature has done, has been to provide how free and equal elections are to be conducted. It has confined itself to regulating them, and has not gone beyond forbidden limits by interfering with their freedom and equality. It has neither denied, qualified, nor restricted the right of every elector to vote freely and for the persons of his choice.' It has simply told him how he may vote freely and equally with all others, and, in doing so, has made no distinction that affects his freedom or given him a right that is not equal to that of every other elector, to take his ballot to the box, as he has made it up, to be counted as his vote. This system of regulating free and equal elections would be more than a human device, if it did not encounter criticism. Perfect though it were as the wisdom of man could make it, there would still be those among men to point to its defects, and, as in every case of legislation not in accord with the view or sense of right and propriety of those affected by it, the constitution would be turned to as the shibboleth to strike it down. It may or may not be wise legislation ; the convenience of the elector may not have been properly considered when it was passed; another system might be more convenient; defects in it may be fairly pointed out and improvements suggested. But these are not matters for us. Our duty is to apply the touchstone of the constitution, and if the response is freedom and equality the act must be upheld. Such is the response here.

The decree is affirmed and the appeal dismissed at the costs of appellants.

Me. Justice Dean,

dissenting:

Section 22, of the act of 1893, as amended, provides as follows : If any voter “ desires to vote for every candidate of a political party, he may make a cross mark in the appropriate square opposite to the name of the party of his choice, in the straight party column on the left of the ballot, and every such cross mark shall be equivalent to a vote for every candidate for the party so marked.” It is this -provision, given to a voter who wishes to vote for all the candidates of one political party, the special privilege of doing so, by a single cross mark, which occasions inequality which it seems to me is unconstitutional because it authorizes a voting for political parties, not for men.

Section 5, of article 1, of the constitution, provides that all “ elections shall be free and equal.” This provision of the 22d section of the act of 1893, gives a facility and freedom to vote to the voter 'who desires to cast his vote for a political party, wants to avoid cutting his ticket, which it does not give to the voter who desires to vote for a man instead of a party. The policy of our government and the policy of our constitution are intended to promote independent thought and independent voting. This practical restriction, by the 22d section of the act of 1893, obstructs and hampers the independent voter. He is not on an equality with the voter who desires to vote a straight party ticket. This was strikingly evident in the general election of last year, 1904, when more than 100,000 voters in Pennsylvania cast defective ballots, not because they were unintelligent, but because the obstruction to expressing’ their choice was so great, that they could not vote readily for the man whom they intended to vote for. Making it easy for one section of voters who desired to vote a straight party ticket, on which no mistake could be made, and hampering and obstructing intelligent voters who desire to vote independent of party, for men, destroys the freedom and equality of voters. I concede that the legislature may regulate a method of voting, to a reasonable extent, but when the effect of a restriction, or a regulation, is to debar a large section of intelligent voters from exercising their choice, the constitution is certainly violated in spirit, if not in letter, and I would hold this act, for that reason, unconstitutional, and so decide.

Mestrezat and Thompson, JJ., concur in dissent.

       Also reported SI Pac. Repr. 250. Reporter.

      Also reported 62 N. W. Eepr. 564. Reporter.

      Also reported 76 N. W. Eepr. 482. Reporter.

      Also reported 47 Pao. Eepr. 670. Reporter.

      Also reported in 5 N. E. Kepr. 596. Eeporter.


source: Caselaw Access Project

author: Mb. Chief Justice Mitchell,

license: Public Domain

text:
    Handley’s Estate.

      Wills—Legacies—Cumulative legacies.

    Directions in a will apparently clear, but inconsistent with others equally clear must be harmonized if possible by conforming them to the general intent of the will.
    Where testator gave certain legacies for charitable purposes but directed that these legacies excepting one should not be used for the purposes designated until they had doubled by accumulation of interest, and subsequently directed that income from royalties and the proceeds of the sale of mineral lands should be divided among the charities previously mentioned, the court, from a consideration of the whole will and the general intent of the testator construed the gift of the royalties and proceeds of sale as not cumulative upon the specific bequests previously given but as directory of the mode of payment.
    Argued February 20, 1905.
    Appeal, No. 90, Jan. T., 1904, by H. W. Palmer, John T. Richards and L. A. Watres, Executors of John Handley, deceased, from decree of O. C. Lackawanna Co., Series 692, sustaining exceptions to executor’s account in Estate of John Handley, deceased.
    Before Mitchell, C. J., Dean, Brown, Potter and Elkin, JJ.
    Reversed.
    Exceptions to executor’s account.
    From the record it appeared that the House of the Good Shepherd contended, that the executors erred in including in their general administration account an item of $12,000, received from the Delaware and Hudson Company for coal leased or sold to said company, for the reason that all the income from the testator’s coal, timber and mineral lands is specially bequeathed to St. Patrick’s Orphan Asylum, the House of the Good Shepherd and the city of Winchester, Virginia,, in the proportion of thirtjr-three and one third per centum to each, and is not subject to general administration expenses. •
    It was also contended that the executors erred in not distributing the item of $12,000 to these two institutions' and the city of Winchester.
    The court in an opinion by Sando, P. J., sustained the exceptions.

      Error assigned was the decree of the court.

      Holmes Conrad, of Va., with him II. W. Palmer and Harold A. Watres, íoj; appellant.
    A testator’s general intention is to be deemed paramount to any adverse particular intention of his: Jesson v. Wright, 2 Bligh, 1, 57; Roddy v. Fitzgerald, 6 H. L. Cases, 823, 877; Goebel v. Wolf, 113 N. Y. 405 (21 N. E. Repr. 388); Ferry’s Appeal, 102 Pa. 207; Sheetz’s Appeal, 82 Pa. 213; Schott’s Estate, 78 Pa. 40; Doebler’s Appeal, 64 Pa. 9; Yarnall’s Appeal, 70 Pa. 335; Hitchcock v. Hitchcock, 35 Pa. 393; Earp’s Will, 1 Parsons, 453; Middleswarth v. Blackmore, 74 Pa. 414; Jones v. Strong, 5 Kulp, 7.

      T. P. Soban, for appellee.
    A plain and unambiguous words of the will must prevail and cannot be controlled or qualified by any constructions growing out of the situation, circumstances or condition of the testator, his property or the natural objects of his bounty: Handley’s Estate, 208 Pa. 388.
    May 8, 1905 :
   Opinion by

Mb. Chief Justice Mitchell,

By item two of his will the testator gave to St. Patrick’s Orphan Asylum of Scranton, the sum of $50,000, in trust, to accumulate at interest until it should amount to $100,000, after which the income should be applied to the use of the orphans in the asylum.

' By item three he gave to the House of the Good Shepherd in Scranton $25,000 to be used and laid out for the inmates from time to time. „ There was no direction to accumulate as in the preceding bequest, but the sum bequeathed must under the subsequent item twenty-two, be regarded as capital, and only the income expended for the purposes named.

By item four he gave to the city of Winchester $250,000 in trust to be invested at interest until it should amount to $500,000, and then to be devoted to the establishment of a public library to be called the Handley Library.

By item fourteen he directed his “ executors from time to time to rent at the best rents or royalty all coal and other minerals in and upon my lands in the states of Pennsylvania, Virginia, West Virginia and other states, upon the same terms and conditions like minerals are rented by other parties.” And by the next item fifteen he directed “ that the income arising from the royalty or rents of my said mineral lands shall be applied as follows by my executors, namely:

“ First—To pay the running expenses and public taxes.

“ Second—The balance of said rents or royalty to be paid over every six months to the directors or trustees of St. Patrick’s Orphan Asylum, the House of the Good Shepherd, and the City of Winchester, Virginia, in the following proportions, namely, thirty-three and one third per cent, of such rents or royalty thereof to each.”

By item eighteen he directed his executors “ to pay over all money arising from the sale of land situated in Virginia, West Virginia, Pennsylvania and other States, and the timber and bark thereon, and all minerals in and under said land, to the Directors and Trustees aforesaid, and to the City of Winchester, Virginia, in the same proportions as named herein, namely thirty-three and one third per cent, of the net income.” (Clearly meaning net proceeds.)

The learned court below held that the legacies in items fourteen, fifteen and eighteen of the royalties and proceeds of sale of the lands were cumulative upon those given in items two, three and four. The correctness of this construction is the substantial question in this case.

It may be conceded that taking these items by themselves, and viewing them all as bequests which prima facie they appear to be, they are presumably cumulative, but when read in connection with the other parts of the will the true construction is by no means as clear. The testator had a large estate which he disposed of by a will elaborately drawn in twenty-nine items or sections, evidently the result of much care and thought. Unfortunately, however, he did not succeed in expressing his intentions as clearly as he desired, and the result is conflict and inconsistency between some of the sections, which we must reconcile as best we may.

A careful study of the entire will leaves no doubt about the general scheme and intent of the testator. He gave a few personal bequests to his housekeeper and others, and directed his executors to continue paying the expenses of certain boys and girls that he was educating, and to give each $500 on graduation. Besides these he appears to have contemplated other bequests of similar kind to persons to be named in a schedule, which, however, was never filled up. Beyond these, the whole sum of which is comparatively insignificant in amount, he gave his entire estate to three beneficiaries in trust for four purposes: St. Patrick’s Asylum, the House of the Good Shepherd, the city of Winchester for the Handley Library, and the same city for the erection of schoolhouses for the education of the poor. No other gift is made to anybody, and the only difficulty is in ascertaining how much he meant to .give to each of these four.

The testator’s ideas of the successful carrying out of his benefactions were on a large scale, and considerable as his es^ tate was, he did not regard it as sufficient for the immediate operation of his charities. He had formed a definite idea of the amounts required, and manifestly preferred adequacy in that respect to earliness of operation. Hence he gave definite amounts in items two, three and four, but required that as to the two larger of them, the active operation should be postponed until the sums named should have doubled by investment. The sum named for the House of the Good Shepherd was not directed to be accumulated, but it, like all the others, was to be treated as capital, and only the income expended, under item twenty-two. The first three benefactions were thus provided with specific sums for successful operation according to the testator’s standard, the fourth was left undefined in amount by the gift of the residue. He expected it to be large, however, as is manifest from the fact that the purpose is one requiring a substantial amount, and from the fact as already adverted to that adequacy of amount for the prescribed purpose was in his view a prime requisite.

With this indisputable view of the testator’s general intent, we take up the different sections of the will relating to the mode of carrying it out.

It is notable that the personal property, though it turned out to be considerable in fact, does not appear to have been regarded by the testator as an important element. The only reference to it is the direction in item ten that it should be sold at private sale with no directions as to the proceeds. And in item nineteen his executors are directed to apply his life insurance to the payment of debts of record against his real estate.

The estate, though large, was not regarded by the testator as sufficient, or at least in condition for the immediate operation of his scheme. Whether it was heavily incumbered, as the provision for the application of his life insurance might indicate, or whether there was uncertainty of some kind about it, such as the failure of his titles to the lands in West Virginia, does not appear. But that he did not consider it available for immediate distribution is manifest all through the instrument. By item twenty-five he directed that “ the total income obtained from my estate, real, personal or mixed, shall be accumulated for the period of two years from the date of my death.” No exception is made anywhere in the will in favor of earlier payment of any legacy, except that of $5,000 to Annie Mayberry, which is to be paid “ within two years,” and the annuity to his housekeeper, which under the general rule may be fairly implied as commencing from his death. By item eleven his executors were to “retain at rent for the period of twenty years ” his real estate in Scranton; by item thirteen they are to sell his real estate at the end of twenty years; by item fourteen they are to rent upon royalties, etc., all the coal and other minerals in his lands ; and by item seventeen they are to lease the surface of his farm and mineral lands, and “ also to lease the minerals on said lands for the period of twenty years.” These are the' testator’s directions as to the course of administration of his estate, covering in specific detail every source of assets,.and plainly indicating a period of twenty years as requisite for the purpose to be accomplished in full.

Turning now to the directions for distribution we find them equally detailed and specific, but unfortunately not equally clear and consistent. Item twelve is, “ I order and direct that all incomes and profits growing out of my said real estate, no matter where situated, after paying charges, life estate, repairs and taxes and insurance, shall be laid out and expended in paying in part, or in whole, the several bequests provided for and mentioned in this, my will.”

Item fourteen is, “ I hereby order and direct my executors from time to time to rent at the best rents or royalty, all coal and other minerals, in and upon my lands, in the states of Pennsylvania, Virginia, West Virginia and other states, upon the same terms and conditions like minerals are rented by other parties: ” and

Item fifteen is, “ I order and direct that the income arising from the royalty or rents of my said mineral lands shall be applied as follows by my executors, namely,

“ First. To pay the running expenses and public taxes.

.“ Second. The balance of said rents or royalty to be paid over every six months to the directors or trustees of St. Patrick’s Orphan Asylum, the House of the Good Shepherd and to the City of Winchester, Virginia, in the following proportions: namely, thirty-three and' one-third per cent, of such rents or royalty thereof to each.”

Item eighteen is, “ I direct and order my executors to pay-over all money arising from the sale of land situated in Virginia, West Virginia, Pennsylvania and other states, and the timber and bark thereon, and all minerals in and under said laud to the directors and trustees aforesaid, and to the city of Winchester, Virginia, aforesaid, in the same proportions as named heréin, namely, thirty-three and one-third per cent, of the net income.” Item twenty-five is, “I hereby order and direct my executors, unless where otherwise specially ordered, to pay the said persons, corporations and city of Winchester, Virginia, the said several sums of money bequeathed, devised and given by me in the manner following, namely:

“ The total income obtained from my estate, real, personal or mixed, shall be accumulated for the period of two years from the date of my death, and after paying of all just debts, taxes, insurance and other charges for the preceding year, the balance remaining shall be divided by my executors pro rata among the several persons, corporations and the city of Winchester, Virginia, named in my will, in proportion to the amount bequeathed and devised to each, and so continue to pay from year to year, on the first days of January in each year, until each and every bequest is paid in full by my executors and their successors.”

Here we meet the first and only serious difficulty in the case. Items fourteen, fifteen and eighteen on one hand are repugnant to items twelve and twenty-five on the other. Item twelve is as broad as language can make it, “ all incomes and profits growing out of my said real estate no matter where situated ” are to be used to pay the several bequests. Incomes and profits, coupled with directions to rent and sell, clearly include proceeds of sales as well as rents in the meantime, and especially in view of the testator’s use of the word income in item eighteen plainly meaning proceeds. Item twenty-five is equally comprehensive as to income, “ the total income obtained from my estate, real, personal or mixed,” is to be divided “ among the several persons, corporations and the city of Winchester named in the will.” The direction in this item, it is true, is subject to the words, “ unless where otherwise specially ordered.” In items fifteen and eighteen the payments are certainly otherwise specially ordered, for the moneys arising under those items are to be paid to the three legatees named in equal amounts, while under item twenty-five the payments are to be made to all the legatees, “the several persons or corporations, and the city of Winchester ” in proportion to the amount bequeathed to each. But even giving the most extended meaning claimed by appellee to the phrase “ otherwise specially ordered,” we still have item twelve with its broad and peremptory direction to use “ all incomes and profits growing out of my real estate no matter where situated ” in payment of all legacies alike. The repugnance on the face of the items is manifest and unavoidable. Is it vital to the substance of the bequests, or is it directory as’ to mode of payment ? Do items fourteen, fifteen and eighteen give new and cumulative legacies to the three legatees named, which override the inconsistent provisions of items twelve and twenty-five? The court below so held. We are not able to concur in this view.

There is no clear gift of a second legacy in items fifteen and eighteen. The language is entirely consistent with such second gift, but equally so with a' direction as to the mode of payment of the first, and the rest of the will is far more in harmony with the latter construction. As already said, the testator had in mind a standard of the amount of capital necessary for the commencement of the active administration of his charities, and accordingly directed in the case of St. Patrick’s Asylum and the Handley Library that the funds respectively given should be “ retained and invested at interest until the same ” should double in amount, which meant a postponement of the active operation of those charities for a period approximating the twenty years which he allowed for the full administration of his estate. It does not seem probable that if he had contemplated large additional sums coming to those institutions under cumulative legacies in items fifteen and eighteen he would have postponed the time of activity to the slow duplication of the original capital by interest. Moreover we must assume that the different sums given to the three institutions were fixed in the testator’s mind by their different requirements. Yet if .the view of cumulative legacies be adopted we are driven to suppose not only that the original $25,000 given to the House of the Good Shepherd directly and explicitly in item three was small in comparison with his whole intended gift to that institution by the indirect and doubtful language of items fifteen and eighteen, but also that by the equal division of the royalties and proceeds of sales of land, the House of the Good Shepherd should have its legacy increased in twice the ratio of St. Patrick’s Asylum, and ten times the ratio of the Handley Library. Such a result is at variance with the whole scheme of the will. It is far more consistent with that scheme to consider items fifteen and eighteen as directory of the mode of payment of the legacies in items two and three in which the funds were to await the process of duplication by investment and in which therefore the payment of the initial sum at the earliest available date was important'.

The residuary bequest to the city of Winchester was of course undefined in amount, but as already said it is plain that the testator intended it to be large. It is not consistent with such intent that he should have diverted from it substantially all the assets of his estate capable of producing an adequate basis of capital for his scheme of public schoolhouses for the education of the poor. In this respect also the construction of cumulative legacies in items fifteen and eighteen is contrary to the clear and unquestionable general intent of the testator.

The will as already said is elaborately drawn and its provisions in some particulars inconsistent. Probably no construction could be given which would be free from argumentative objections. But considered as a whole, with a view to the general intent, it is reasonably clear. Abridged and put into order it comes to this :

First, except a few legacies of insignificant amount, the estate is given to three beneficiaries upon four trusts, to St. Patrick’s Orphan Asylum, $50,000 ,• to the House of the Good Shepherd, $25,000 : to the city of Winchester, $250,000 for the Handley Library; and to the city of Winchester, the residue for the erection of schoolhouses for the education of the poor. There are no other gifts, articles fourteen, fifteen and eighteen being directions for the mode of payment of the legacies already named.

Secondly, under items twelve and twenty-five the general income of the estate to be accumulated for two years and then applied pro rata to all the legacies in proportion to their amounts.

Thirdly, the special income from royalties from coal and mineral lands, and the proceeds of the sale' of such lands to be applied equally, one third to each, in payment of the legacies to St. Patrick’s Asylum, the House of the Good Shepherd and the city of Winchester for the Handley Library.

Fourthly, after the payment of the definite legacies, and during the remainder of the twenty years before final distribution, the net income from all sources will fall into the residue.

Fifthly, the directions for investment and expenditure in various items, particularly twenty-one, twenty-two and twenty-three are not for the executors but are addressed to the legatees. as conditions of the trust upon which the legacies are given.

Decree reversed and account directed to be settled in accordance with this opinion.


author: Mr. Justice Brown,

text:
    Bonstein v. Schweyer, Appellant.

      Dower—Sale—Mortgage—Decedents’ estates.

    Where a widow conveys her interest in her husband’s land and takes a mortgage from the vendee, whatever estate she has in the land is extinguished, and there remains to her simply a chose in action secured by the mortgage.

      Mortgage—Contemporaneous mortgages—Recording acts—Discharge of mortgage.

    Where two mortgages on the same land are left on the same day and at the same moment in the recorder’s office, a sale under one of the mortgages will discharge the other; and it is immaterial that the mortgage under which the sale was made followed the other in the mortgage book. In such a case priority in the mortgage book gives no priority of lien.
    Argued March 7, 1905.
    Appeal, No. 54, Jan. T., 1905, by defendants, from order of C. P. Northampton Co., Dec. T., 1904, No. 26, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Jerome J. Bonstein, executor of Susanna Wagner v. Frank C. H. Schweyer, Albert S. Rabenold and W. II. Deshler.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Potter, JJ.
    Affirmed.
    Assumpsit for balance of purchase money.
    Rule for judgment for want of a sufficient affidavit of defense. Schuyler, P. J., stated the facts to be as .follows:
    One John Wagner being seized of a certain farm died intestate, leaving to survive him a widow, Susanna, and three daughters to wit: Susanna, Eva and Rebecca. After his death, his widow and the two daughters, last named, executed a release to the remaining daughter, Susanna, of all their right, title and interest in and to said farm. On the same day Susanna, the daughter, executed two mortgages on the farm, one to the widow for $4,250, and the other to Eva for $2,883.34, both of which were entered for record simultaneously. As a next step the latter mortgage was foreclosed resulting in a sheriff’s sale of the farm to Susanna, the daughter. At the sheriff’s sale .a written notice was given to the sheriff by Eva and Rebecca as follows : “ The farm to-day to be sold by you is sold subject to a dower in favor of Susanna Wagner, the principal payable at death by Susanna Wagner, widow of John Wagner, deceased. The amount of the dower so charged is two-thirds of $4,250.” Subsequently the daughter Susanna having died in the interim, her executor, the present plaintiff, sold the farm to the defendants. A dispute having arisen, as foreshadowed by the above notice, it was agreed between the parties in interest that the purchasers might retain two-thirds of the $4,250, to' wit : $2,833.34 to await a “ decision of the court ” as to which of the claimants is entitled to the money. It is admitted that if the lien of the $4,250 mortgage was discharged by the sheriff’s sale, then the money belongs to the plaintiff, and that otherwise it belongs to Eva and Rebecca. The present action has been brought to recover the said $2,833.34 representing as it does the balance of the purchase money admitted to be due.
    The court made absolute a rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court..

      Calvin F. ■ Smithy with him, James B. Beshler, and C. A. Croman, for appellants,—The
    The paging in the mortgage book conclusively establishes the priority of entry: Woods’ App., 82 Pa. 116.
    Where one purchases land at a sheriff’s sale upon condition that it be sold subject to a lien which would otherwise be divested, the purchaser takes the land subject to such lien. Tospon v. Sipe, 116 Pa. 588; Crooks v. Douglass, 56 Pa. 51; Zeigler’s Appeal, 35 Pa. 173; Ashmead v. McCarthur, 67 Pa. 326.

      S. J. Steele,' for appellee.
    A sale on one of two contemporaneous mortgages of equal lien discharges both : Dungan v. American Life Ins. & Trust Co., 52 Pa. 253.
    Under such circumstances neither mortgage is “prior to all other liens on the same property: ” Magaw v. Garrett, 25 Pa. 319.
    No estate remained in the widow: Steckel v. Koons, 102 Pa. 493; Henderson v. Stryker, 164 Pa. 170; Kreamer v. Fleming, 191 Pa. 534; Haines v. Eshleman, 25 Pa. Superior Ct. 381; Fenton v. Fenton, 208 Pa. 358.
    A sheriff is bound to sell the debtor’s whole interest in the land and, therefore, the notice given at this sale was inoperative to prevent the transfer of the entire interest of the mortgagor and the property covered by the mortgage: Reigle v. Seiger, 2 P. & W. 340; Rogers v. Davidson, 4 Penny. 472.
    May 8, 1905 :
   .Opinion bt

Mr. Justice Brown,

There is no denial in the affidavit of defense of any material fact averred in the plaintiff’s statement. Sometime prior to April 4, 1877, John Wagner, late of the township of Lower Nazareth, county of Northampton, this state, died intestate, leaving to survive him a widow, Susanna Wagner, and three children: Susanna Wagner, Jr., Eva Matilda, married to Bar-net. Laubach, and Rebecca Elizabeth, married to John J. Young. He was the owner of a tract of land situated in the said township, containing a little over 100 acres. On April 4, 1877, by a deed of release the widow and the two daughters, Mrs. Laubach and Mrs. Young, in consideration of the sum of $8,783.33, conveyed “ all their right, title and interest in said premises ” to Susanna Wagner, Jr. On the same day she executed two mortgages on the land, one to Susanna Wagner, her mother, for $4,250, and the other to her sister, Mrs. Laubach, for $2,833.34. For what purpose these mortgages were given does not appear in the statement, nor is it material in determining the question raised on this appeal. If the one executed to the widow was to secure her interest in her intestate husband’s land, it secured the same to her only as a debt due by her daughter Susanna, the grantee of herself and the other two children : Fenton v. Fenton, 208 Pa. 358. What would have remained as an estate in the land for the widow became but a chose in action. By the deed executed by the mother and the two married daughters all their estate in the land of the husband and father passed to the daughter Susanna, and what, without such deed, would have remained an estate in the land for the benefit of the widow was extinguished. The case as presented is simply that of an owner of land executing two mortgages to two different mortgagees to secure the payment of. two sums borrowed. These mortgages were both left in the recorder’s office and entered of record at the same time—9:30 A. M., April 14, 1877. The one given to the widow was recorded in mortgage book No. 34, page 81 and the other in the same book at page 83. In 1898 a scire facias was issued on the mortgage given to Mrs. Laubach, judgment recovered and the premises sold by the sheriff, Susanna Wagner, Jr., again becoming the purchaser of it. At the sheriff’s sale Mrs. Laubach and Mrs. Young gave notice that the property would be sold subject to a dower in favor of Susanna Wagner, two-thirds of the principal, $4,250, to be payable at her death.

The widow of John Wagner, as already shown, had no dower in the premises at the time of the sheriff’s sale, and the notice of the two daughters amounted to nothing. Even if the dower had not been extinguished, its existence would have had no bearing on the principal question raised below and on this appeal, which is : Did the sale on the mortgage given to Mrs. Laubach divest the lien of the one given to Mrs. Wagner, the widow? While this is hardly to be considered a question, we must pass upon it because it has been raised by the appellants, the vendees of the executor of Susanna Wagner, Jr., and W. H. Deshler, their surety for the payment of the balance of the purchase money.

By the Act of March 28, 1820, 7 Sm. L. 308, it is the duty of the recorder to indorse the time—hour and minute—when a mortgage is left with him for record, and the lien of it on the land described in it commences from that time of the day. The act further provides that if two or more are left for record upon the same day, they shall have priority according to the time thej'- are left at the office for record. These two mortgages were left at the office for record on the same day and at the same moment of time—9:30 A.M., April 14,1877. Neither had priority over the other. The lien of each commenced at precisely the same moment. There can be no answer to this. in the face of the words of the statute; but the appellants contend, and with apparent seriousness, that the lien of the mortgage given to the widow was prior to that of the one given to the daughter, because, according to the pages in the mortgage book, it was recorded first. It was recorded on page 81, and the other on page 83, and the position of the appellants, as they state it", is “ that the paging in the mortgage book conclusively establishes the priority of entry,” and, therefore, priority of lien. It was impossible to record the two mortgages at the same instant in the same mortgage book. One had to appear there first, but the page on which it appeared had nothing to do with its lien. That commenced the moment, the arrival of the mortgage in the recorder’s office was noted by the recorder, and, in contemplation of law, it was recorded from the moment it was left for record. As a matter of universal experience, we know that mortgages and deeds are not actually recorded as soon as they are brought into the office, because it is not possible to so record them. They accumulate in the office for record. Those brought first are first recorded, and in time all are recorded.

Under the contention of the appellants, as it must be understood, no mortgagee is safe with the lien of his mortgage, as against other mortgagees, until his mortgage is actually recorded in the mortgage book. Of this proposition serious consideration could hardly be expected, and certainly will not be given to it. As the lien of the mortgage to the widow was not prior to that given to the daughter, it was not preserved by . the ac.t of assembly. The sheriff’s sale divested the lien .of each. The other question raised was also properly disposed of by. the court below.

Judgment affirmed.


author: Mr. Justice Mestrezat,

text:
    Sibley v. Robertson, Appellant.

      Appeals—Assignments of errors—Answers to points—Exceptions.

    Assignments of error based on answers to points will not be considered whore’the record shows that no exceptions were taken to such answers.

      Married women—Principal and surety—Evidence—Act of June 8, 1893, P. L. 344.
    Where a married woman is sought to be held on an obligation as to which she claims that she is a surety for her husband, her liability is not determined alone by the form of the obligation,, if the object was to evade the disability created by the statute. The fact, not the form, will determine her liability.
    In an action against a married woman where it appears that the defendant agreed in consideration of the leasing of her property by plaintiff and the employment by him of her husband as superintendent of the business to be carried on in the premises, to become liable for one-half of plaintiff’s losses in such business, evidence is admissible to show that the liability of the defendant was assumed on the importunity and solely at the request and for the benefit of defendant’s husband, and without any negotiations between the plaintiff and the defendant.
    Argued March 20, 1905.
    Appeal, No. 7, Jan. T., 1905, by defendant, from judgment of C. P. No. 5, Phila. Co., March T., 1903, No. 589, on verdict for plaintiff in case of Francis P. Sibley v. Hannah A. Robertson.
    Before Dean, Fell, Brown, Mestrezat and Elkin, JJ.
    Reversed.
    Assumpsit against a married woman on an , obligation in writing. Before Ralston, J.
    • At the trial it appeared that the obligation in- question was as follows:
    ’ “ This, agreement made and entered into by and between .Francis’P. Sibley, of the city of Philadelphia, party of the first- part; and Hannah A. Robertson, party of the second part:

      “WITNESSETH:
    “That the said party of the second part is the owner of a mill in Pittsville, 22nd Ward of the City of Philadelphia, which the said Francis P. Sibley has agreed to rent from her at a rental of $.750 per annum and employ her husband as manager of the said mill. In consideration of the leasing of the said mill and the payment of the rent therefor at the rate fixed in the lease by the'said Francis P. Sibley and of the said Francis P. Sibley employing the husband of the said Hannah A. Robertson under a certain agreement of even date herewith between the said Francis P. Sibley and William J. Robertson, the party of the second part hereby covenants and agrees to and with the said Francis P. Sibley that if at the time the said business shall be terminated in accordance with the terms of said agreement or in any other way, it shall have resulted in a net loss to Francis P. Sibley, that she, the said Hannah A, Robertson, shall and will pay to the said Francis P. Sibley one-half of the net losses suffered by him in consequence of said agreement.”
    When William J. Robertson, defendant’s husband was on the stand, he was ashed this question :
    “ Q. Look at that paper, signed by Hannah A. Robertson, July 21, and tell me when you first saw it.”
    Objected to by Mr. Potter.
    Objection sustained.
    Exception for defendant. [2]
    Mr. Lamb : I renew my offer to prove by this witness that she first signed the lease and some days afterward the other paper, the third paper—agreement—was brought to her by her husband and she then signed it.
    Objected to by Mr. Potter.
    Objection sustained.
    Exception for defendant. [4]
    The defendant was asked this question :
    “ Q. Did you get notice from Mr. Sibley about terminating the lease of your property ? ”
    Objected to by Mr. Potter, as irrelevant and immaterial.
    Objection sustained.
    Exception for defendant. [5]
    “ Q. Did you ever see the agreement between your husband and Mr. Sibley, by which your husband was to be employed? ”
    Objected to by Mr. Potter.
    Objection sustained.
    Exception for defendant. [6]
    “ Q. What consideration of any kind did you receive for signing the paper—the agreement between you and Mr. Sibley ? ”
    Objected to by Mr. Potter.
    Objection sustained.
    Exception for defendant. [7]
    Verdict and judgment for plaintiff for $6,450. Defendant appealed.

      Frrors assigned were (1-7) various rulings on evidence, quoting the bill of exceptions ; (8-15) answers to various points.

      John Gr. Lamb, for appellant.
    The principal contention of the appellant is that the agreement between her and the appellee, by which she agreed in consideration of the leasing of her mill and the employment of her husband to pay oné half the losses suffered by the appellee in his business, was an attempt to evade the proviso in the act of June 8, 1893, which prohibits her from becoming surety for another, and therefore void: Patrick v. Smith, 165 Pa. 526; Vogel v. Leichner, 102 Ind. 55 (1 N. E. Repr. 554); Real Estate Investment Co. v. Roop, 132 Pa. 496; Burkholder's App., 105 Pa. 31.

      Leoni Meliek, of Melick, Potter & Dechert, with him Frederick S. Drake and John Weaver, for appellee,
    cited: Paper Co. v. Cassard, 206 Pa. 179; Milligan v. Phipps, 153 Pa. 208; Spott’s Eat., 156 Pa. 281; Kuhn v. Ogilvie, 178 Pa. 303; Wiltbank v. Tobler, 181 Pa. 103.
    May 8, 1905 :
   Opinion by

Mr. Justice Mestrezat,

This is an action of assumpsit against a married woman, the appellant, to enforce a liability arising on certain agreements signed by her and the plaintiff, the appellee. She resists a recovery on the ground that no consideration passed to her and that in executing the agreements she assumed the liability of a guarantor or surety for her husband and is therefore protected by the Act of June 8, 1893, P. L. 344 (2 Purd. Dig. 1299) which provides that a married woman “may not become accommodation indorser, maker, guarantor or surety for another.” This provision of the act of 1893 has frequently been before this court for construction. Patrick & Co. v. Smith, 165 Pa. 526, was an action of assumpsit on a promissory note given by a married woman to the plaintiffs. Smith presented to the plaintiffs, bankers, a draft indorsed by himself for discount. Plaintiffs agreed to accept the draft with the wife’s indorsement if she would draw a check for the proceeds. Smith took the draft home, and at his request his wife indorsed it and drew a check on Patrick & Co. for the proceeds, payable to her husband’s order. When the draft matured, Smith paid part of it, and at the request of Patrick & Co. obtained from his wife her note for the balance, and her check for the proceeds payable to his order. Mrs. Smith’s part of the transaction was solely for the accommodation of her husband which was well known to the plaintiffs. This court held that there could be no recovery against the wife on the note, and that she was within the protection of the proviso to the act’ of June 8, 1893, forbidding a married woman to become an accommodation indorser, guarantor or surety for another. In delivering the opinion Mr. Justice Dean, speaking of the act of 1893, says: “ This act declared that a married woman might bind herself by many contracts which theretofore she could not legally make, yet it expressly continued her disability to become an accommodation indorser, guarantor or surety for another. . . . Formerly her capacity to contract was exceptional, and her disability general; now the disability is exceptional and her capacity general. . . . Her liability is not determined alone by the form of the obligation. If the object was to evade the disability created by the statute, the fact not the form will determine her liability. . . . The whole transaction was a transparent device, adopted by the plaintiffs and the husband, to evade an express statutory enactment; to -create, by form, a liability, where by law none in fact existed. As she received no benefit, as the plaintiff was in no way deceived,' she was under neither moral nor legal obligation to pay, and there should have been no verdict against her.” This case was followed and approved in Wiltbank v. Tobler, 181 Pa. 103. The Late Chief Justice Gbeen, delivering the opinion in that case, in speaking -of the capacity of a married woman to enter into a contract prohibited by the proviso to the1 act of 1893, said : “ As there- was not 'then (prior to the act of 1893), and is not now, any contracting capacity upon which such a liability can be founded, it does not exist. In Patrick & Co. v. Smith, 165 Pa. 526, this view was enforced where a very ingenious method of evading the act was devised. But we looked beyond the method, and refused to enforce a liability of indorsement by the wife of" a draft in favor of her husband, although she drew the proceeds of the draft from the bank which discounted it by her personal check in favor of her husband, and subsequently gave her own note for the unpaid part of the draft, and again drew the proceeds by her personal check in favor of her .husband:" Real Estate Investment Co. v. Roop, 132 Pa. 496, involved the interpretation of the proviso in the married person’s.property act of 1887 that nothing in the act should “ enable a married woman to become accommodation indorser, guarantor, or surety for-another,” this being identical with the provision as to. her disability found in the act of 1893. The case arose, on a judgment note signed- by both husband and wife to raise money to aid the husband in his business. This court held that the wife was not liable on the note, and in the opinion it is said : “ If not given as surety for her husband, it (the note) was given upon1 his importunity and to aid him in his business, one of the very perils from which the law ought to protect a married woman.”

We must disregard the last eight assignments which allege error in the court’s answers to the requests for instructions embraced in the points for charge presented, by the appellant. No exceptions were taken to the rulings of the trial court and hence they cannot be assigned for error. This is to be regretted as those rulings raise material questions.iir the case. . The appellant’s contention is that the three papers offered in evidence for the purpose of establishing herliability, at least when supplemented by the parol evidence she offered, disclose the fact that she was a surety for her husband and hence the contract was ■ avoided by the above cited provision of the act of 1893. ’ She maintains that, in the language of the court in Patrick & Co. v. Smith, 165 Pa. 526, “ the whole transaction was a transparent device adopted by the-plaintiff and - her husband to evade an express statutory enactment; to create, by form, a liability, where by law none in fact existed.” But, as suggested above, by reason of the failure to except to the court’s rulings on the points presented, we cannot determine these vital questions. The third assignment is likewise not supported by an exception and hence cannot be considered.

Some, at least, of the other assignments, however, alleging error in the rejection of testimony, must be sustained. The purpose of the testimony, as we gather from the questions though not set forth in an offer, was to show that the liability of the appellant was assumed, as in the cases cited above, on the importunity and solely at the request and for the benefit of the defendant’s husband and without any negotiations between the appellee and the appellant. Such testimony in no way contradicts the writings in the ease, but was material in determining the liability of the appellant on the cause of action set forth in the statement. This evidence was competent in view of what was said in the opinion referred to above, that the defendant’s “ liability is not determined alone by the form of the obligation, if the object was to evade the disability created by the statute, the fact, not the form, will determine her liability.” We sustain the assignments in so far as they allege error in-the rejection of testimony of that character.

The judgment is reversed and a venire facias de novo is awarded.


text:
    Hatch, Appellant, v. Philadelphia & Reading Railway Company.

      Negligence—Railroads—Passengers—Getting on train.

    It is the duty of the crew of a passenger train, the conductor and brakemen having it in charge, to see that all passengers boarding it, or manifestly intending to board it, are safely on it before the signal is given to the engineer to start. Failure to do so is negligence, and if a passenger is-thrown from the step or platform of a car by the starting of it before he is safely on it, the. railroad company is liable for the injuries sustained.
    While it is the duty of those having a train in charge to sée that it is not started until all passengers are safely on it, they are not to be regarded as careless, and their company through them, negligent, if they give the signal to start after everyone reasonably to be regarded as a passenger is safely on the train and subsequently, one not only not seen by them, and, even if seen, not reasonably to have been regarded as an intending passenger, steps on the platform just as the train starts and is thrown off and injured.
    Argued March 21, 1905.
    Appeal, No. 79, Jan. T., 1905, by plaintiff, from order of G. P. No. 5, Phila. Co., June T., 1903, No 4480, refusing to take off nonsuit in case of Charles J. Hatch v. Philadelphia & Reading Railway Company.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Ralston, J.
    The facts are stated in the opinion of the Supreme Court.
    At the trial the court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was the order of the court.

      Harry A. Mackey, with him Augustas Trask Ashton, for appellant
    cited: Penna. R. R. Co. v. Peters, 116 Pa. 206; Austrian v. Traction Co., 19 Pa. Superior Ct. 329.

      Gavin W. Hart, for appellee,
    cited: Picard v. Ridge Ave. Pass. Ry. Co., 147 Pa. 195; Pitcher v. People’s St. Ry. Co., 154 Pa. 560; Pitcher v. People’s St. Ry. Co., 174 Pa. 402; Stager v. Ridge Ave. Pass. Ry. Co., 119 Pa. 70.
    May 8, 1905:
   Opinion by

Mr. Justice Brown,

It is the duty of the crew of a passenger train, the conductor and brakemen having it in charge, to see that all passengers boarding it, or manifestly intending to board it, are safely on it before the signal is given to the engineer to start. Failure to do so is negligence, and if a passenger is thrown from the step or platform of a car by the starting of it before he is safely on it, the railroad company is liable for the injuries sustained. While it is the duty of those having a train in charge to see that it is not started until all passengers are safely on it, they are nob to be regarded as careless, and their company, through them, negligent, if they give the signal to start after everyone reasonably to be regarded as a passenger is safely on the train and subsequently, one not only not seen by them, and, even if seen, not reasonably to have been regarded as an intending passenger, steps on the platform just as the train starts and is thrown off and injured.

As to this plaintiff, there was no evidence of the railroad company’s negligence, and he was rightly nonsuited. The question of its negligence depended entirely upon his testimony. He went to Mount Pleasant station as an intending passenger. When he got there he saw the train pulling in. There was a lawn around the station building of the same grade as the tracks. When he reached the steps leading up to the lawn the train was at the station. Smoking a cigar, he walked leisurely towards it across the lawn in the direction of the last car, but neither said nor did anything to indicate to the crew, if they saw him, that he intended to get on the train. On the contrary, if they did see him, they saw him slowly walking in the direction of the last car, but with no indication in his movement that he intended to become a passenger. By no sign nor word did he give any indication of such an intention. He says he. did not see any of the crew. This is probably so, for, after stopping at the station and seeing no indication of an intention by any one to become a passenger, they may have all gone inside the cars and the signal was given to start. If, after having stopped, the signal was given to start with no intending passenger in sight, or, if it was given after the appellant was in sight, but clearly from his own testimony not to have been reasonably regarded as one intending to become a passenger, there was no negligence in starting the train. If he stepped on it just as it started, he is without remedy, for the company was not negligent under the circumstances.

Judgment affirmed.


author: Mb. Justice Mestbezat,

text:
    Schmoele, Appellant, v. Betz.

      Basement—Right of way—Alley.

    An easement of a right of way over another’s property is appurtenant to the particular piece or lot of land of the dominant owner with which it is granted and is not personal to the owner authorizing him to use it in connection with other real estate he may own abutting on the right of way:
    Where the owners of lots abutting on an alley have the right to use the alley “as and for a passageway and water course,” the owner of one of the lots who is also the owner of a theater situated on the other side of the alley, has no right against the objection of a lot owner having an easement in the alley to erect a fire escape consisting of two balconies on the wall of the theater overhanging the alley opposite the lot of the objecting owner.

      Alley—Obstruction—•Tenant for 999 years.

    A tenant of land for 999 years has a right while in possession of the premises to protect his easement in an alley on the premises against third persons by an action at law or a suit in equity.

      A lley—Basement—Obstruction—Fire escape.

    The owner of an easement in an alley for a passageway and water course may enjoin the owner of the land on the opposite side of the alley who has no easement therein, from erecting a fire escape on his wall so as to overhang the alley, although the use of the easement is not materially impaired.
    Argued March 23, 1905.
    Appeal, No. 23, Jan. T., 1905, by plaintiff, from decree of C. P. No. 5, Phila. Co., March T., 1904, No. 1879, dismissing bill in equity in case of Charles Schmoele and Ida Schmoele, trustees, v. John F. Betz and John G. Jermon.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Bill in equity for an injunction. Before Ralston, J.
    The facts are stated in the opinion of the Supreme Court.
    The court entered a decree dismissing the bill.

      Errors assigned, amongst others was decree dismissing the bill.

      EranJc P. Prichard, with him Thomas S. Gates, for appellants.
    —Defendant had, no right whatever to maintain on the theater wall overhanging the alley a fire escape intended to enable the patrons of the theater to use the alley: Patterson v. P. & R. R. R. Co., 8 Pa. C. C. Reps. 186; Stevenson v. Stewart, 7 Phila. 293; Kirkham v. Sharp, 1 Wharton, 323; Lewis v. Carstairs, 6 Wharton, 193; Shroder v. Brenneman, 23 Pa. 348; Coleman’s App., 62 Pa. 262; Greenmount Cemetery Co.’s App., 4 Atl. Repr. 528; Greene v. Canny, 137 Mass. 64.
    Plaintiffs were entitled to maintain a bill to enjoin such erection irrespective of proof of actual damage: Hacke’s App., 101 Pa. 245; Miller v. Lynch, 149 Pa. 460; Ellis v. Academy of Music, 120 Pa. 608; Mershon v. Fidelity Ins. etc. Co., 208 Pa. 292; Greene v. Canny, 137 Mass. 64.
    The facts showed such a change of condition and use of the property as amounted to a substantial interference with the plaintiff’s right.

      Samuel Gustine Thompson, with him, Walter Willard, for appellees,
    cited: Patterson v. Philada. & Reading R. R. Co., 26 W. N. C. 327; Stevenson v. Stewart, 7 Phila. 293.
    May 8, 1905:
   Opinion by

Mb. Justice Mestbezat,

This bill was filed to restrain the defendants from maintaining a fire escape over and across an alley in the rear of the' plaintiff’s premises. The facts which we deem material and were found by the trial judge and not excepted to are the following:

1. The plaintiffs are the owners of a leasehold estate for 999 years in the lot of ground No. 246 N. Franklin street, Philadelphia, containing in front on Franklin street twenty feet and extending of that width westward between parallel lines at right angles with Franklin street one hundred and twenty-two feet eight inches to a three feet four inches wide alley leading northward into Vine street, together with the free and uninterrupted use, right and privilege of the said alley as and for a passageway and water course in common with the owners and occupiers of the other ground abutting thereon.

2. The defendant, John F. Betz, is the owner of No. 248 N. Franklin street, adjoining the plaintiff’s lot, with the same right as the plaintiffs to the use of the alley.

3. The defendant, John F. Betz, is the owner, and the defendant, John G. Jermon, is the lessee of a lot of ground with a theater building thereon, situated on the south side of Vine street one hundred and twenty-six feet -west of Franklin street, containing in front on Vine street eighty-one feet and extending of that width in length or depth one hundred feet. The east wall of the theater forms the western boundary of the alley, but in the deeds conveying the theater lot no privilege of the alley is granted.

4. The defendants have erected on the east wall of the theater a fire escape consisting of two balconies constructed of iron slats, which overhang the alley opposite the rear of lots Nos. 246 and 248 N. Franklin street, and have also constructed a permanent stairway from the lower balcony over No. 248 N. Franklin street, which is owned by the defendant, John F. Betz ; the rear fence of this property has been moved forward, and the open space abutting on the alley is utilized for the foot of the stairway. The lower balcony is about sixteen feet above the pavement of the alley.

5. The titles of the plaintiffs and defendants came originally from a corporation, the common grantor. The corporation first conveyed the theater property, now owned by defendant Betz, and in the description of the lot in the deed no alley is mentioned, and the lot is described as bounded eastward by other ground of the parties of the first part. At the date of this conveyance the alley had not been dedicated as a passage and no privilege of the alley is granted nor is it referred to in the conveyance. In the subsequent deeds in the line of title down to the defendant Betz, the alley is not described as a boundary nor is any privilege of the alley granted. The plaintiff’s lot was conveyed, “ together with the free use, right, liberty and privilege of the said three feet four inches wide 'alley as and for a passageway and water course in common with the parties of the first part hereto, their successors and assigns, owners and occupiers of the other ground bounding thereon, and the laying and repairing therein pipes of conduit, for the purpose of introducing Schuylkill and other water from the said Vine street into the thereby granted premises, or any part thereof.”

In addition to the above, the learned trial judge found that the plaintiffs have not been obstructed in their right to the use of the alley as a passageway and water course, that the fire escape does not in any material respect impair the use of the plaintiff’s easement and in no way interferes with their use of the alley. These findings of fact are excepted to and assigned for error. The court held as conclusions of law that the plaintiffs “ have simply a right to use the alley as a passageway and water course; ” that at the rear of No. 248 N. Franklin street, the defendant Betz being the owner of both sides of the alley “ may at that point erect such structures as he chooses so long as he does not interfere with the easement in the alley; ” and “ that the defendants have a right to maintain the stairway and that part of the fire escape which is opposite the rear of No. 248 N. Franklin street. ” The learned judge accordingly refused the injunction prayed for in the bill, and the plaintiffs have appealed.

We think that on the uncontroverted facts in this case it was clear error to refuse the relief prayed for in the bill. It is manifest from the cases he cites that the learned trial judge was led into error by a misapprehension of the facts of this case. The' authorities he cites have no application here. In both cases, the owner of the fee had granted a right of way over the premises, retaining the ownership of the soil, and it was held that the grantee could not enjoin him from building over the alley if it did not interfere with the use of the way. But those are not the facts in this case. The parties to this suit hold under a common grantor who first conveyed the theater property by metes and bounds before the dedication of the alley in question and with no reference to an alley or to a right of way over an alley. The eastern boundary of the property is described in all the deeds of the defendants’ chain of title as “ ground now or late of,’-’ etc. Hence it is clear that the defendants, as the owners of the theater premises, have neither ownership nor easement in the soil of the alley and, therefore, have no right to utilize or obstruct the alley for any purpose.

The defendant Betz is the owner of the lot at No. 248 N. Franklin street, which adjoins the plaintiff’s lot and at the rear abuts on the alley with the' same rights over it as the plaintiffs have. Prior to the sale of any of the lots abutting on the alley, it was dedicated as a passageway by the owner of all the ground to the use of the lots on the eastern side of the alley. It is appurtenant alike to all of them, and the owners of the several lots have the same easement in and over the alley. The easement thus acquired by Betz when he purchased the premises at 248 N. Franklin street was appurtenant solely to those premises, and did not extend to the theater property nor to any other property which he possessed. The purchase of that property, therefore, invested him with no authority to erect or maintain a fire escape on the east side of his theater over and across the alley, and in maintaining such a structure he is invading the property rights of the plaintiffs and other lot owners who have a like easement in the alley. It is settled that an easement of a right of way over another’s property is appurtenant to the particular piece or lot of land of the dominant owner with which it is granted and is not personal to the owner authorizing him to use it in connection with other real estate he may own abutting on the right of way. In Kirkham v. Sharp, 1 Wharton, 323, the owner of a large lot of ground conveyed to another a small part of it fronting on a street together with the use of an alley extending a certain depth from the street alongside of the lot granted. Subsequently, the owner of the large lot sought to extend the depth of the alley beyond the smaller lot so as to connect it with another alley leading from the rear of the large lot. It was held that this could not be done against the objection of the grantee of the smaller lot. Chief Justice Gibson in discussing the rights of the parties says (p. 334) : “ It is certain that the ungranted residue of a right of way may be annexed to a particular messuage or close, either by express stipulation or necessary implication, according to the occasion of the grant. An instance of this might be found in the disposal of houses surrounding a court, originally destined to be a common avenue to them, in which it would be sufficiently obvious from the disposition of the property, that the right of way had been appended to the houses and not to the owner of them. By the act of laying out the ground as a court, it would be allotted to the houses intended to adjoin it, so as to pass with them as an appurtenance; and the right of the owner would be correspondingly qualified by the nature of the use to which it was dedicated. Sales of the houses would successively abridge it, till it was ultimately extinguished along with his property in the last of them, when the purchasers might, by common consent, bar the entrance against his person, notwithstanding his legal title, just as they might bar it against a stranger. During his ownership of but a part of the property, he would be entitled to no privilege that he had not originally annexed to it, nor could his right to use the court as a thoroughfare to a messuage or close adjoining him on the further side be greater than that of any of his grantees. Is not that the case before us ? .... It is plain, therefore, that to make the alley an appurtenance to what it was not at the time of the purchase, would be a fraud upon the contract.” In Lewis v. Carstairs, 6 Wharton, 193, Burd conveyed a lot to Sims together with the use of an alley as a passage in common with Burd “ and his heirs and those to whom he may likewise grant the same ” privilege. Subsequently, Burd conveyed the residue of his property to Murray who was also owner of other lots adjoining the alley. This court held that Murray could not use the alley for his other lots. In delivering the opinion Chief Justice Gibson says (p. 206): “ The easement passed from Burd to Murray as appurtenant to the residue of Burd’s ground; and it could pass in no other way, for the conveyance contained 210 power in gross to grant it without stint. On that state of the case, then, Murray could not append it to groiuid to which it was not appendant before.” In Shroder v. Brenneman, 23 Pa. 348, both parties 0W2ied the property adjoining an alley and with a right of way over the alley as appurtenant. The defendant also owned another property on the alley to which the alley was not appurte2iant. It was held that the defendant could not erect a hydrant in the alley for the use of the lot to which the alley was not appurtenant. Woodwakd, J., delivering the opinion says, (p. 350): “It is a well-settled rule of law, that if a man have a right of way over another’s land to a particular close, he cannot enlarge it and extend it to other closes, and this whether his right be by user or by deed. . . . The reason of the rule is stated in Howell v. King, 1 Mod. 190, and runs through the subsequent cases, that if the law were not so, the owner of the close to which the right is appurtenant might purchase an indefinite number of adjoining acres, and annex the right to the2n, by which the grantor of the way might be entirely deprived of the benefit of his land; a reason which applies with all its force to a private alley like that in respect to which this suit was brought. Entitled to the use of this alley for the purposes of the lot purchased of Metzgar, if Shroder can use it also for the convenience of the lot he purchased from Withers, there is nothing to prevent his use of it in connection with any other lots he may purchase along the alley, and thus Brenneman may be annoyed with the general use of a right granted only for a special purpose. The right is not personal to Shroder, but appurtenant to his one specific lot, and the necessary limitation of its extent is found in the terms of the grant.” The principle of these cases is recognized and approved in Coleman’s Appeal, 62 Pa. 252; Greenmount Cemetery Co’s. Appeal, 1 Sadler’s Reps. 371; Greene v. Canny, 137 Mass. 64; Howe v. Bell, 143 N. Y. 190.

We infer from the language used in the opinion that the learned trial judge thought the right of the plaintiffs to the relief sought in thi§ suit was in some way affected unfavorably by the fact that they are tenants for 999 years, and not the owners in fee of the Franklin street property. We regard this position as untenable. The tenant while in possession of the premises has a right to protect his possession against third persons by an action at law or a suit in equity. This proposition is self-evident and is well stated with a citation of numerous cases of the state and federal courts to sustain it in 18 Am. & Eng. Ency. of Law (2d. ed.), 453, as follows: “ After he (the tenant) has entered into possession he is, as to third persons, to be regarded as the owner, and may maintain, to the same extent as any other owner in possession, trespass quare clausum fregit for any unlawful interference with his right of possession, or trespass on the case for indirect or negligent injuries to his possessory right, and may also seek protection of his rights in a court of equity.” In Hamilton v. Dennison (Conn.), 1 L. R. A. 287, it was held that a tenant at will under a parol lease could maintain an action for damages for obstructing a passageway appurtenant to his'premises. Park, Chief Justice, delivering the opinion, says (p. 288) : “ The defendant claims that the plaintiff, being only a tenant at will of the premises under a parol lease, had not sufficient interest in the way to enable him to maintain this suit. We think this claim is unfounded. The plaintiff was in possession of the premises, and in possession of the way, and this was sufficient to enable him to maintain a suit against the wrongdoer who disturbed his possession.” In Gale on Easements, 571, it is said that “ an injunction to restrain an obstruction to light has been granted at the suit of a yearly tenant, and of a tenant, whose time had expired after the obstruction, and he had agreed to renew.” .

We do not agree with the trial court that the plaintiffs cannot restrain the defendants from maintaining a fire escape urn less they show that it in some material respects impairs the use of the easement. The erection of the fire escape by the defendants was a trespass and an infringement of the rights of the plaintiffs in the alley, and the right of the latter to the easement being conceded,, equity will direct a removal of the obstruction and enjoin a continuance of the trespass without proof of actual damages. Such is the doctrine of all our cases. Hacke’s Appeal, 101 Pa. 245, was a bill by a lessee of property with the use of an alley appurtenant, and the court entered a decree directing the defendants to remove an obstruction from the alley. In delivering the opinion Mr. Justice Trunkey says (p. 249) : “ It has long been settled that nuisances to rights of way are one of the classes of cases in which the equitable remedy by injunction may be sought. .... This right of way is founded upon contract, the grant being shown by the respective deeds under which Brown and Hacke hold their lots. The owner has a right to its enjoyment in the mode and form stipulated for in the deeds. The mere fact that the appellants prevent such enjoyment is sufficient ground for interference of the court by injunction. It is not necessary that the owner should prove damage to entitle him to his property. Like rule applies as if the right existed by covenant directly between Brown and Hacke, and in such case when the covenant is of such nature that it can, consistently with the principles of equity, be specifically enforced, the court will not, unless under very exceptional circumstances, take into consideration the comparative injury to the parties from granting or withholding the injunction.” Ellis v. Academy of Music, 120 Pa. 608 was a case for the' erection of a bridge over an alley which the plaintiff had the right to use as a passageway and water course. The trial court charged in part as follows, which was the subject of one of the unsustained assignments of error (p. 611) : “ Parties haying the use of an alley which is > free and unobstructed, are entitled to the same use of it that the public is entitled to on its highways. If it is wrong for a private owner, owning on both sides of the street, to shed over the street, it is wrong for a private owner to shed over an alley if the owners object. No matter if they are not injured to any considerable extent, still if their legal right is invaded, they are entitled to have that right vindicated by verdict and judgment in their favor establishing the right and its invasion.” This court in affirming the judgment for the plaintiff said (p. 623) : “ The right, whether in the fee or only in the way, was common to both parties, so that neither, without the assent of the other, had the right to alter the character of the alley in any particular. Nor did the court err in charging that parties who are entitled to a free use of an alley, have the same right in it that the public has in its highways, and that if the way in this case were vacated, the soil would belong to the plaintiff and defendant as tenants in common. By the several grants to these parties, their properties were not only bounded on the alley in controversy, but it was made appurtenant to those properties. Nothing, therefore, was left in the owner, and if the fee did not vest in these grantees it is hard to tell where it is. ”

Nor can we assent to the finding of the trial judge that “ the plaintiffs have not been obstructed in their right to the use of the alley as a passageway and water course,” and that the fire escape “ does not in any material respect impair the use of the easement ” of the plaintiffs in the alley. The fire escape had two balconies overhanging the alley and extending longitudinally over the greater part of it. Its purpose was to afford an exit from the theater in ease of an emergency, and the evidence shows that it had been used for that purpose. This imposed an additional servitude on the alley and interfered with the use of it by the plaintiffs and others having an easement in it. Doors of the theater opened on the fire escape and persons were thus enabled to use it at any time for either a proper or an improper purpose. It appeared that on some occasions boys had gone on the fire escape from the theater and annoyed the occupants of the property on the east side of the alley. Parties using the alley take the risk of things placed on the fire escape falling on them, as well as the structure itself falling. Rain and snow impregnated with accumulations of dirt and rust would fall from it on persons passing through the alley. It is manifest, we think, from the evidence that the fire escape was an obstruction to, and an interference with, the use of the alley, and that it was clear error for the court to find to the contrary.

The decree is reversed at the costs of the appellees, and it is now ordered, adjudged and decreed that the bill be reinstated and that the defendants remove the fire escape from the alley and that an injunction issue restraining them perpetually from maintaining a fire escape over and across said alley.