author: Mr. Justice Moschziskeb,

text:
    Chambers, Appellant v. Union Trust Company.

      Wills — Construction—Life estate — Rule in Shelley’s case — Rule in Wild’s case.

    Testator directed as follows: “I give and devise my farm (devised by my father to me) to my nephew, (naming him) and to his children; but in case he should die without legal issue then it is to go to the heirs of my father as directed by the intestate laws of Pennsylvania.” The nephew was without children at testator’s death, and subsequently died without leaving children to survive him. Held, (1) that the gift to the nephew and his children was tantamount to a gift to the nephew for life with remainder to his children; (2) that the word “children” was not to be given any larger meaning by the subsequent use of the words “legal issue;” (3) that neither the rule in Wild’s Case, 6 Coke, 16b; nor the rule in Shelley’s Case, had any application to the devise, and (4) that upon the death of the nephew without children the devise vested in the heirs of testator’s father in fee as an alternative limitation.
    Argued Feb. 7, 1912.
    Appeal, No. 306, Jan. T., 1911, by plaintiffs, from judgment of C. P. Bucks Co., May T., 1910, No. 6, for defendants on case stated in suit of Hannan H. B. Chambers et al., suing for themselves and the heirs of William Barnsley, deceased v. Union Trust Company of Pittsburg, Guardian of George T. Barnsley, Jr., a minor and Susa G. J. Barnsley.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Moschzisker, JJ.
    [Reversed.

      Ejectment for real estate in Warminster township.
    Case stated to determine title to real estate.
    The facts are stated in the opinion of the Supreme Court.
    The court in an opinion by Staples, P. J., specially presiding entered judgment for defendants on case stated.

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

      John G. Johnson, Yerkes, Boss '& Boss and B. O. Moon, for appellants.
    Undér the settled decisions of this court, the devise “to my nephew Joseph Barnsley and to his children,” is identical with one “to my nephew Joseph Barnsley for life with remainder to his children in fee simple:” Shirlock v. Shirlock, 5 Pa. 367; Hague v. Hague, 161 Pa. 643; Crawford v. Forest Oil Co., 208 Pa. 5; Elliott v. Diamond Coal & Coke Co., 230 Pa. 423.
    The rule in Wild’s case has no application in Pennsylvania, in a devise like that of Joseph Barnsley, even though there are no children in existence at the death of the testator, because the reason upon which it rests, fails under the different interpretation of such a devise in Pennsylvania: Seibert v. Wise, 70 Pa. 117; Cote v. Von Bonnhorst, 41 Pa. 243; Taylor v. Taylor, 63 Pa. 481.
    The word “children” being a word of limitation and there being a vested remainder in children born before the death of Joseph Barnsley, as they are born, the words “in case he should die without legal issue” are under the decisions, to be interpreted as referring to a definite failure of issue: Sheets’ Est., 52 Pa. 257; Powell v. Board of Domestic Missions, 49 Pa. 46; Fetrow’s Est., 58 Pa. 424; Daley v. Koons, 90 Pa. 246; Beckley v. Riegert, 212 Pa. 91; West v. Vernon, 215 Pa. 545.

      Montgomery Evans, with him John M. Dettra and J. S. Christy, for appellees.
    The appellees contend: That by the devise to Joseph Barnsley and to his children, but in default of issue, then over, the testator intended the estate to descend through the lineal descendants of the first taker until they became extinct and the rule in Shelley’s case applies, and that Joseph Barnsley, devisee, took an estate tail, enlarged by the Act of April 27,1855, P. L. 368: Stoner v. Wunderlich, 198 Pa. 158; Grimes v. Shirk, 169 Pa. 74; Pifer v. Locke, 205 Pa. 616; Campbell’s Estate, 202 Pa. 459; Hollowell v. Phipps, 2 Wharton, 376; Haldeman v. Haldeman, 40 Pa. 29; Vilsack’s Estate, 207 Pa. 611; Beilstein v. Beilstein, 194 Pa. 152; Dilworth v. Schuylkill Imp. Land Co., 219 Pa. 527.
    . The rule in Wild’s case applies: Graham v. Flower, 13 S. & R. 439; Sholfield v. Zehmer, 6 Watts 101; Ellet v. Paxson, 2 W. & S. 418; Cote v. Von Bonnhorst, 41 Pa. 243; Coursey v. Davis, 46 Pa. 25; Taylor v. Taylor, 63 Pa. 481; Seibert v. Wise, 70 Pa. 147; Wolford v. Morgenthal, 91 Pa. 30; Kennedy v. Humes, 15 W. N. C. 508; Braden v. Cannon, 24 Pa. 168; Cressler’s Est., 161 Pa. 427.
    “Death without issue,” etc., means death of the first taker before that of the testator and if the first taker survives the testator, he takes an indefeasible estate: Hogg’s Estate, 27 Pa. Superior Ct., 428; Mickley’s App., 92 Pa. 514; King v. Frick, 135 Pa. 575.
    April 8, 1912:
   Opinion by

Mr. Justice Moschziskeb,

The matter here for decision is the question of the ¡proper interpretation of the following provision contained in the will of Joseph Barnsley: “Item. I give and devise my farm (devised by my father to me) to my nephew, Joseph Barnsley and to his children; but in case he should die without legal issue, then it is to go to the heirs of my father, as directed by the intestate laws of Pennsylvania; subject, nevertheless, to the yearly payment of one hundred dollars to my sister, Mary Ann Barnsley, during her life.”

The testator died January 12, 1888. Mary Ann Barnsley, the annuitant, died January 16,1889. Joseph Barnsley, the devisee, entered into possession of the farm in the year 1888 and retained the same until October 11, 1909, when he died unmarried and without children, no issue ever having been born to him. He left a will in which he devised all of his property. The plaintiffs claim as the heirs of William Barnsley who was the father of the testator, and the defendants under this will of the testator’s nephew and devisee. In a well stated opinion, after reviewing various authorities, the learned Court below determined the case thus: “Invoking either the rule in Shelley’s case, or the rule in Wild’s Case, we are of the opinion that the word ‘children’ was a synonym for ‘heirs of his body,’ and that the devise being ‘immediate’ and there being no children to take, the farm was devised in tail and this is enlarged by the Act of April 27, 1855, P. L. 368, into an estate in fee. * * * In accordance with the foregoing reasons * * * , judgment is entered for the defendant for the whole of the above described property.” The plaintiffs have appealed.

In Graham v. Flower, 13 S. & R. 439, it is stated: “In Wild’s Case, 6 Coke, 16b, this distinction is taken: (1) ‘If A devises land to B and to his children or issues, and he hath not any issue at the time of the devise, the same is an estate-tail, for the intent is manifest and certain, that his children or issue should take, and as immediate devisees they cannot take, because they are not in rerum natura, and by way of remainder they cannot take, for that was not his intent, for the gift is immediate; therefore, then, such words shall be taken as words of limitation. (2) But if a man devises land to A and to his children or issue, and he then has issue, his express intent may take effect, according to the rule cf the common law, and no manifest and certain intent appears to the contrary; and therefore, in such case, they shall have but a joint-estate for life.’ ” In the case just cited, and in Shirlock v. Shirlock, 5 Pa. 367, the second resolution of the rule was followed, and it was decided that living childen take immediately with their parent. The resolutions are mentioned in Ellet v. Paxson, 2 W. & S., 418, 434; Cote v. Von Bonnhorst, 41 Pa. 243, 251; Myers’s Appeal, 49 Pa. 111, 114; Taylor v. Taylor, 63 Pa. 481, 488; Seibert v. Wise, 70 Pa. 147, 150; Cressler’s Estate, 161 Pa. 427, 434; Oyster v. Orris, 191 Pa. 606, 609; but in none of these cases does the decision rest upon the rule in question. In Coursey v. Davis, 46 Pa. 25, we decided that a grant to a woman and her children vested in her a life-estate with remainder in fee to the children as a class, so that those in being at the date of the deed, as well as those subsequently born, would be entitled to take in the distribution, on the termination of the life estate at the death of the mother. In Hague v. Hague, 161 Pa. 643, we determined a gift to “Sarah Jane Hague and her children” to be a life-estate in the mother with remainder in fee to the children as a class; thus in effect overruling the earlier cases which held the mother and children to be tenants in common, and expressly announcing that Shirlock v. Shirlock, supra, “cannot now be regarded as authority.” In Crawford v. Forest Oil Co., 208 Pa. 5, a devise to a son “and to his children” was construed to vest a life estate in the former and an estate in remainder in the children living at the testator’s death, subject to open and let in after-born children. In Elliott v. Diamond Coal and Coke Co., 230 Pa. 423, a devise to a daughter “To have and to hold unto my said daughter and her children forever” was held to vest an estate for life in the daughter, remainder in fee to the children as a class. Finally, In Vaughan’s Estate, 230 Pa. 554, a life-estate was given to a wife, at her death one-third of the property was given to a trustee to hold for a daughter, “for her and her children’s sole use and benefit;” held, that the daughter took a life-estate with remainder to her children in fee.

In all of the cases just referred to children were living at the death of the testator, so we may take it as firmly established that the second resolution in Wild’s case is not the law in Pennsylvania. But the question arises, does the first resolution apply when there are no children? Although several of the cases to which we have already referred apparently indicate that this court has recognized the first resolution, yet in none of them have we had occasion actually to apply it in order to rule the matter before us for decision. ■ In fact, this appears to be the first instance where a case has been presented without children in being to take. After an exhaustive examination of the authorities and much thought, we are brought to the conclusion that the resolution does not control under such circumstances, for the reason upon which it rests fails because of the different interpretation which we place upon a devise to a parent and children. Under the second resolution in Wild’s case, as applied in England and originally accepted in Pennsylvania, it was held that such a devise gave the parent and children a joint estate, the children taking immediately and not in remainder. The theory was that, if there were no children in existence at the time of the devise the provision in their favor would fail altogether, unless the parent were given a fee-tail; hence, and for that reason alone, the first resolution. But with us, where the children take in remainder, it is immaterial whether they are, or are not, in existence at the time of the devise or at the time of the death of the testator: Cote v. Von Bonnhorst, 41 Pa. 243, 251; Curtis v. Longstreth, 44 Pa. 297, 303; Taylor v. Taylor, 63 Pa. 481, 488; therefore it is not necessary to give an artificial meaning to the devise in order to care for the interests of the children, and there is no apparent reason for adhering to the first resolution in Wild’s case. In Cote v. Von Bonnhorst, supra, where the devise was to a daughter “to have and to hold to her for and during the term of her natural life and at and immediately after her decease, * * * to her children in fee; bnt if she should die without having children,” then over, we held that the daughter took but an estate for life, and after refusing to treat the word “children” as a word of limitation, and referring to the rule in Wild’s case, Strong, J., said (p. 252) : “Where a limitation is to a parent for life, and to his children by way of remainder, there seems to be no ground, whether there are children or not, for holding the parent to be a tenant in tail,” and (p. 251), “the reason ceases entirely when the gift to the children instead of being immediate is by way of remainder.”

We shall now consider the applicability of the rule in Shelley’s case. In the present instance, as in all other cases, our first inquiry is, looking at the words of the will, what did the testator intend? We entertain no doubt that when Joseph Barnsley devised the farm to “my nephew and to his children,” and provided if the nephew should die without legal issue it was to go to the heirs of his, the testator’s father, he did not at all contemplate that, if the nephew should leave no descendants his heirs should take to the exclusion of the heirs of the testator’s father. Yet, if the words used express an intention that the land shall go to the testator’s nephew and then descend lineally through him to his issue, the rule in Shelley’s case applies and the Court below must be affirmed on that theory. But on the other hand, if the words show that the testator intended the children of his nephew to take as purchaser’s directly from him, the testator, then the rule in Shelley’s case has no application: Kemp v. Reinhard, 228 Pa. 143.

Under the settled decisions of this Court, the language employed by the testator, “to my nephew and to his children” was tantamount to saying, “to my nephew for life with remainder to his children.” The only question is, does the use of the phrase “in case he should die without legal issue,” make it necessary to construe the prior use of the word “children” as though it were “issue,” which would mean an indefinite failure of issue, thus creating an estate tail and bringing the devise within the rule in Shelley’s case? We think not. “Children” is prima facie a word of purchase and not of limitation, and we are convinced that the present testator intended so to use it. Moreover there is no necessity for giving the word an enlarged meaning, for here, under the devise as framed, the estate would vest in the children of the nephew as a class immediately upon any of them coming into existence before his death and there could, therefore, be no possibiliy of an exclusion of descendants. As to the phrase “without issue,” “there is less reluctance to narrow the prima facie meaning of the word ‘issue’ than of” other words; that word may be “applied only to children:” Taylor v. Taylor, 63 Pa. 481, 483. “It is an unbending rule that when a fee-simple * * * is given in remainder after an estate for life to the children of a first-taker, words following containing a limitation over on. default of his issue are held not to raise an estate-tail by implication. In this class of cases ‘issue’ is construed to mean ‘such issue;’ that is, children:” Sheets’ Estate, 52 Pa. 257, 268; Curtis v. Longstreth, 44 Pa. 297, 302-3. “It is well settled also that words importing a failure of issue without the word ‘such,’ following a devise to children in fee-simple or fee-tail, refer to the objects of that prior devise and not to the issue at large:” Daley v. Koons, 90 Pa. 246, 249. The present case falls within these authorities and the words of the devise, “legal issue,” should have been construed to mean, “such children,” and to import a definite failure of issue.

Since the nephew was dead, without issue, the devise over to the heirs of William Barnsley, the father of the testator, would take effect as an alternative limitation : Sheets’ Estate, 52 Pa. 257; Fetrow’s Estate, 58 Pa. 424, and the Court below should have determined this case accordingly. The assignments of error are sustained, tbe judgment for tbe defendants is reversed and judgment is here entered for tbe plaintiffs.


source: Caselaw Access Project

author: Me. Justice Moschziskeb,

license: Public Domain

text:
    Funk v. Hummelstown & Campbellstown Street Railway Company, Appellant.

      Negligence — Street railways — Fright of horse — Snow—Evidence.

    In an action against a street railway company to recover damages for death of plaintifPs husband, a verdict and judgment against the defendant cannot be sustained, where it appears that the accident occurred on a stormy winter’s night when the wind was blowing, and the snow driving and drifting, on a turnpike road in a rural community, where there were but few houses in the immediate vicinity; that the defendant operated a street railway in the middle of the turnpike; that piles of snow had been shoveled or drifted on both sides of the track to a height variously estimated from eighteen inches to three feet; that at the time of the accident the deceased was riding on a horse between the rails as a car approached from the opposite direction, that his horse was unmanageable; that when the motorman saw the deceased he blew the whistle and brought his car to a stop, but the horse continued to rear and plunge, and the deceased fell to the ground across the track and part way under the front of the car; and that there was no direct evidence that the car came in contact with the rider or the horse before the deceased was unseated, or to explain precisely the immediate cause of the injury of which he died.
    Argued Feb. 14, 1912.
    Appeal, No. 29, Jan. T., 1912, by defendant from judgment of C. P. Lebanon Co., June T., 1910, No. 30, on verdict for plaintiff in case of Sarab R. Funk v. Hummelstown and Campbellstown Street Railway Company.
    Before Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Reversed.'
    Trespass to recover damages for personal injuries. Before Henry, P. J.
    Tbe facts are stated in tbe opinion of the Supreme Court.

      Verdict and judgment for plaintiff for $2,500. Defendant appealed.

      Errors assigned were in refusing binding instructions for defendant and in refusing to enter judgment for defendant n. o. v..

      Grant Weidman, F. Lyman Windolph and John E. Snyder, for appellant.
    Under the circumstances of the case and in view of the testimony adduced, the cause of the accident resulting in the death, was conjectural merely: Turton v. Powelton Electric Co., 185 Pa. 406; McCloskey v. Chautauqua Lake Ice Co., 174 Pa. 34; Kible v. Philadelphia, 105 Pa. 41; Matulys v. Philada. etc. Coal & Iron Co., 201 Pa. 70; Fisher v. Ry. Co., 131 Pa. 292; Reading & Columbia R. R. Co. v. Ritchie, 102 Pa. 425.
    This case should never have been submitted to a jury because, under the testimony, the proximate or dominant cause of the accident was conjectural merely: State v. Philadelphia etc. R. R. Co., 60 Md. 555; Powers v. R. R. Co., 143 Mich. 379 (106 N. W. Repr. 1117); Hazel v. Pass. Ry. Co., 132 Pa. 96; Rotsell v. Warren Borough, 10 Pa. Super. Ct. 283; Pittsburgh Southern Ry. Co. v. Taylor, 104 Pa. 306; East End Oil Co. v. Torpedo Co., 190 Pa. 350; Alexander v. Water Co., 201 Pa. 252.

      Warren G. Light, for appellee.
    The case was for the jury: Stanton v. Traction Co., 11 Pa. Super. Ct. 180; Yoders v. Amwell Twp., 172 Pa. 447.
    The defendant company was liable for its negligence in doing anything upon the public highway which caused an injury to the deceased: Bradwell v. Ry. Co., 153 Pa. 105; Kraut v. Ry. Co., 160 Pa. 327; Gibbons v. Wilkesbarre etc. St. Ry. Co., 155 Pa. 279; Wagner v. Ry. Co., 158 Pa. 419; Shaffer v. Beaver Valley Traction Co., 229 Pa. 533; Scott Twp. v. Montgomery, 95 Pa. 444.

      April 8, 1912:
   Opinion by

Me. Justice Moschziskeb,

Sarah Funk brought this action in trespass against the Hummelstown and Campbellstown Street Railway-Company, on behalf of herself and her minor child, to recover damages for the death of her husband, Harry K. Funk, which she alleged resulted from the negligence of the defendant Company.

On the evening of January 29, 1910, a stormy night, Funk was riding horse-back along a public highway called the Berks and Dauphin turnpike. It had been snowing and blowing the entire day and previous night, and the snow was thrown up in banks or drifts along the road. The testimony as to the height of these banks of snow varied, some witnesses saying that they were as high as three feet and others that they were not more than eighteen inches. The defendant company operated a trolley line in the middle of the turnpike, and on the day of the accident had two employees clearing its right of way and shovelling the snow to the north and south of its tracks. The deceased had arrived in the town of Palmyra and was riding between the rails as a' car approached from the opposite direction; at that time his horse was unmanageable. When the motorman saw the deceased he blew the whistle and brought his car to a stop, but the horse continued to rear and plunge and Funk fell to the ground across the track and part way under the front of the car. An examination of his body disclosed an injury upon his head about the size of a dollar, from which he died shortly afterwards. There was no direct evidence that the car came in contact with the rider or the horse before Funk was unseated or to explain precisely the immediate cause of the injury from which he died. The jury rendered a verdict for the plaintiff, and the defendant has appealed and assigns for error the court’s refusal of binding instructions and judgment non obstante veredicto in its favor and the entry of judgment on the verdict.

A careful examination of the printed evidence fails to reveal any proofs which would justify a finding that negligence by the defendant Gompany caused the injury complained of. The citation of authorities in cases of this character is of little or no avail, since each case must stand or fall on its own facts. As was truly said by President Judge Rice in Stanton v. Traction Co., 11 Pa. Superior Ct. 180, 200: “The width of the street, the amount of travel upon it, the grade, the climate, the depth of the snow fall, the depth of the snow already upon the ground, the kinds of vehicles in common use, and many other circumstances of minor importance are all to be considered in determining what is due care in the disposition of the snow which the Gompany removes from its tracks. It is not possible to lay down a single rule applicable alike to a crowded thoroughfare of a populous city, and to a little travelled road where ample room is left on either side of the track for vehicles to pass and turn and all the different roads of varying conditions lying between those two extremes. A case, indeed, may be so plain, that it will be the duty of the Court, taking a practical view justified by common knowledge and experience, to give the jury binding instructions, that the company has exercised all the care in the removal and disposition of the snow that could reasonably be expected.” In the present case binding instructions should have been given for the defendant. The accident occurred on a stormy winter’s night when the wind was blowing and the snow driving and drifting, on a turnpike road in a rural community, where there were but few houses in the immediate vicinity. It appears that the horse was first seen rearing and plunging before it came to the cleared part of the defendant’s right ®f way and before the trolley car was in sight, and that it never went down but the rider was thrown from its back. There was not any evidence from which the jury could justifiably say that the defendant company had removed the snow in an unusual or negligent manner under the circumstances, that by the cleaning of its tracks it had created an unreasonably hazardous condition on the highway which had become a standing danger to its public use, as in some of the cases cited by the appellee, or, in point of fact, that the snow placed by the defendant on the sides of the road caused or directly contributed to this unfortunate accident. Nothing negligent or unusual had occurred in the operation of the car to,which the conduct of the horse or the unseating of the rider could be attributed so as to fix a liability upon the defendant, and it cannot be said with any degree of certainty whether it was contact with the car or with the ground that brought about the fatal injury. After viewing all the testimony in the most favorable light for the plaintiff, we deem the case devoid of evidence showing negligence on the part of the defendant.

The assignments of error are sustained, the judgment is reversed and is here entered for the defendant.


author: Me. Justice Pottee,

text:
    Reber’s Petition.

      Constitutional law — Title of act — Amendment of act — Road, jury —Act of June 28, 1911, P, L. 1128.

    1. The Act of June 23, 1911, P. L. 1123, entitled “An Act establishing in each county, a Board of Viewers; prescribing their duties; providing for their appointment as viewers, road jury, juries of view, and commissioners to view land; and providing for the charges upon the respective counties in the matter of salaries, costs and expenses thereof,” does not violate Article III, Section 3 of the Constitution as containing more than one subject in its title, or as containing subjects not fairly expressed in the title.
    2. Under the constitutional requirements the .purpose of the title is merely to -give warning to the public and to the legislators of that which may actually be found in the body of the act, so as to lead to further inquiry. It is to the contents of the statute only that the title is required to point, and not to its results.
    3. The title of a statute is not to be an index of*the contents of the bill, nor include subjects indirectly affected! nor catalogue the effects of the legislation.

      4. The Act of June 23, 1911, P. L. 1123, does not violate Sec. 6, Article III of the Constitution, relating to revival and amendment of acts.
    5. An act which is complete in itself — the purpose, meaning and full scope of which are apparent on its face — is valid, although it may operate to alter, extend or repeal a prior act, or may provide for the means of carrying its provisions into effect by a reference to a course of procedure established by other acts of the legislature.
    Argued Feb. 14, 1912.
    Appeals, Nos. 12 and 13, Jan. T., 1912, by Conrad S. Beber and by Berks County, from order of C. P. Berks Co., Aug. T., 1911, No. 63, appointing board of viewers In re Petition of Conrad S. Beber.
    Before Mestrezat, Potter, Elkin and Moscitzisker, JJ.
    Be versed.
    Petition for the appointment of viewers.
    From tbe record it appeared that Conrad S. Beber, the petitioner, was a property owner in tbe Borough of West Beading. The petition was under the Act of June 23, 1911, P. L. 1123, and prayed for the appointment of viewers to assess damages for injuries caused by a change of grade in streets in front of his property. The county of Berks was permitted to intervene and file exceptions, to the petition on the ground that the Act of June 23, 1911, was unconstitutional. The court below held that Sections 1, 2 and 3; the first and fourth paragraphs of Section 5; the first paragraph and the first sentence of the second paragraph of Section 6, and Sections 11 and 12, were constitutional, and that the remaining portions of the Act were void, particularly those portions which provided for the payment by the counties, of the salaries, costs and expenses of the board of viewers and of the viewers selected from the said hoard, and in those portions which provided for the making of rules and regulations by the Courts of Common Pleas of the respective counties for the government of the hoard.
    Both Conrad S. Beber and the county of Berks appealed.

      Error assigned was the decree of the court.

      John G. Johnson, with him Edward V. Trexler and William Eerper Stevens, for Conrad S. Reber.
    The act was constitutional in all its parts.
    The title of the act sufficiently disclosed a purpose to prescribe the duties to be performed by the board of viewers acting as such or upon boards of view: Page v. Carr, 232 Pa. 371; Bridgewater Boro. v. Bridge Co., 210 Pa. 105.
    The title of the act sufficiently disclosed the purpose to provide rules and regulations for the government of the board of viewers acting as a board and acting upon boards of view.
    The title of the act sufficiently disclosed the purpose to impose upon counties the salaries, costs and expenses of the board of viewers acting as a board or upon boards of view.
    The act was not unconstitutional because of dealing with separate subjects.
    The act was not unconstitutional because it failed to • provide that the board of viewers should be elected.

      Joseph R. Dickinson and H. Robert Mays, for appellee.
    1. The title to the act is defective in that it does not give notice, and actually misleads as to its contents, in the following particulars: (a) There is no notice of an intention to relieve the parties from burdens and place them upon the counties, (b) There is no notice of an intention to change the fees heretofore allowed to viewers, (c) There is no notice of an intention to prescribe rules and regulations for particular juries, (d) There is no notice of an intention to change the number of viewers and their qualifications, (e) There is no notice of an intention to impose new duties upon the County Commissioners, (f) There is no notice of an intention to abridge the powers of the Courts of Quarter Sessions.
    2. The act legislates concerning a multiplicity of subjects.
    3. The act seeks to amend prior statutes relating to condemnation proceedings, in the following respects: (a) Changing the number of viewers, (b) Changing the qualifications of viewers, (c) Changing the place of meeting: Chestnut Hill & Spring House Turnpike Road Co. v. Montgomery County, 228 Pa. 1; Phoenixville Boro. Road, 109 Pa. 44; Ridge Ave. Pass. Ry. Co. v. Philada., 124 Pa. 219; Pittsburgh’s Petition, 138 Pa. 401; Pinkerton v. Traction Co., 193 Pa. 229.

      George H. Calvert and Donald Thompson, for Board of Viewers for the County of Allegheny presented a printed brief.
    April 8, 1912:
   Opinion by

Me. Justice Pottee,

Conrad S. Reber filed a petition in the Court of Common Pleas of Berks county praying for the appointment of a Board of View under the Act of June 23,1911, P. L. 1123, to assess damages to the petitioner’s premises caused by the change of grade of Penn and Sixth Avenues in West Reading. The county of Berks was allowed to intervene and become a party to the proceedings, and thereupon filed exceptions to the petition, alleging that the act under which it was filed is unconstitutional, because (1) it contains more than one subject, and (2) the subjects contained in the act are not clearly expressed in the title, and (3) the title fails to give notice of the legislative purpose and is actually misleading. These objections were sustained only in part by the learned Judge of the Court below, who held that the provisions of the act requiring the counties to pay the compensation of the members of the Boards of Viewers, and to provide facilities for hearings, and the expense of stenographers and other costs of the proceedings, were unconstitutional. He also held void the provisions relating to procedure before the Boards, the filing of exceptions, and the taking of appeals. He sustained the validity of so much of the act as is contained in sections 1, 2 and 3, the first and fourth paragraphs of section 5, the first paragraph and the first sentence of the second paragraph of section 6, and sections 11 and 12. The portions of the act which he held to be unconstitutional were as follows: Section 4, which fixes the salary and compensation of the members of the Board of View. Part of section 5, relating to the records filed by the sub-Boards of View, and to appeals and exceptions to the actions of the Boards. The latter part of the second paragraph of section 6, requiring the rules and regulations prescribed by the Courts of Common Pleas to be followed by the Boards of Viewers. Sections 7? 8, 9 and 10 were also held to be void. Holding that what was left of the act comprised a workable scheme, capable of standing by itself, the Court below appointed a Board of Viewers as prayed for in the petition.

The county of Berks and the petitioner have each appealed from the decision, and the appeals have been argued together, and both will be disposed of in this opinion.

The question raised is whether the Act of June 23, 1911, P. L. 1123, is unconstitutional in whole or in part by reason of the insufficiency of the title. The appellant Reber contends that the act is entirely constitutional, while the appellant the County of Berks maintains that no part of the statute in question can be sustained. The constitutional provision said bo be violated is section 3 of article III as follows: “No bill, except general appropriation bills, shall be passed containing more than one subject, which shall be clearly expressed in the title.”

The title of the act here in question is “An Act establishing in each county, a Board of Viewers; prescribing their duties; providing for their appointment as viewers, road juries, juries of view, and commissioners to view land; and providing for the charges upon the respective counties in the matter of salaries, costs and expenses thereof.”

The provisions of sections 1, 2 and 3, which were sustained by the Court below, may be briefly stated as follows :

Section. 1. There is hereby established in each county of the Commonwealth, a Board of Viewers, consisting in counties containing over one million inhabitants of from six to nine members; and in other counties from three to nine, the number to be determined by the Judges of the Court of Common Pleas of the proper county. The qualifications of members of the Board are defined and provisions made for declaring the office vacant when a member ceases to be qualified, and for filling vacancies.

Section 2. The Judges of the Courts of Common Pleas shall appoint the members of the Board of Viewers for their respective counties. The Courts of Common Pleas shall make rules and regulations for the government and proceedings of the Boards, and may alter, amend, modify and rescind the same.

Section 3. Members of the Boards shall be appointed for three years, and may be reappointed. They may also be removed by the Courts of Common Pleas. The Judges of the Common Pleas may also fill vacancies in the Boards.

The general purpose of the statute was to create in each county a Board of Viewers from whose members a selection is to be made, to act as viewers and juries in particular cases. The manner in which this is to be done is set forth in section 5 substantially as follows: Whenever a petition is presented to any Court, Judge or Judges, praying for the appointment of viewers, &c., the Court shall appoint a Board of View of three members from among the Board of Viewers of the county as such viewers, &c., in the particular case. The records filed by such Board, when concurred in by two of its members, shall have the same force and effect as records of the Boards of View, and exceptions taken thereto, in the same manner as under existing laws. Vacancies in Boards of View may be filled by the Court.

The title gives fair notice that a Board of Viewers is to be established in each county, whose members are to act as viewers, and upon road juries, juries of view, &c. The title is quite sufficient to give notice of any legislation properly pertaining to the rights, duties and powers of the Boards of Viewers, and of the members thereof. The intention to deal with this subject — the appointment of a Board of Viewers — thus appearing, anyone interested must look to the body of the Act to find the manner in which the subject is dealt with. Provision for attaining various objects which relate to the general subject of the bill may be dealt with by its terms, without making it subject to the charge of containing more than one subject. In the present case, the various provisions with regard to the appointment of a Board of Viewers, prescribing their duties, the compensation to be paid to them and fixing the responsibility for its payment, are all matters closely allied, and naturally to be considered together. They are all germane to the main purpose of the act. The Court below recognized the validity of the statute in so far as it empowers the Courts of Common Pleas to appoint the members of the Board of Viewers for their respective counties, but he considered the title defective in that it did not give notice that the act contained provisions regulating the procedure of the particular juries drawn from the general Board. The title expresses the purpose of the Act as being to prescribe the duties of the members of the County Boards of View. This includes the discharge of duty as “viewers,” members of “road juries,” members of “juries of view” and “commissioners to view land,” whenever they are so appointed. It follows, therefore, that the announcement in the title “prescribing their duties” must cover the duties discharged as members of sub-Boards as well as of the general Board. No reasonable person would be misled by the language of the title in this respect. It is difficult to regard with any degree of seriousness the suggestion that the authority given to the Courts of Common Pleas to establish rules and regulations for the guidance of the Boards of Viewers, whose members they appointed, is an infringement upon the rights and dignity of the Courts of Quarter Sessions. The chief purpose of the statute was to provide a competent and efficient piece of machinery, which when once in operation could be made available by any authority having need for its services. Once established, the membership of the Board of Viewers is to be at the service of any Court or Judge who may find it necessary to appoint viewers. It is a matter of no importance whether the rules for the guidance of the Board be promulgated by a Judge of the Court of Common Pleas or by the same individual sitting in the Court of Quarter Sessions. While these are separate and distinct Courts, yet the Judges comprising them are the same men. The notice given by the title of the purpose of the bill to establish Boards of Viewers, and to prescribe their duties naturally and fairly involves provisions for the formulation of rules and regulations for their guidance. These are to be prescribed by the Courts of Common Pleas, by whom the Boards are appointed. The fact that members of the Board, when serving as members of the sub-Boards, will act upon certain cases referred to them by the Court of Quarter Sessions cannot with any degree of accuracy or propriety be regarded as in any way subjecting the Court of Quarter Sessions to the control of the Common Pleas. As the law stood prior to the Act of 1911, appeals from the reports of viewers, even when appointed by the Quarter Sessions, must be taken to the Common Pleas. Under the Constitution the Judges of the Common Pleas and of the Quarter Sessions are the same persons, and as said above, it seems immaterial whether they lay down rules for the viewers in one capacity or the other.

Nor do we find ourselves able to agree with the Court below in the conclusion that the title does not give requisite notice of the provisions of the act which require the counties to pay the salaries or compensation of the members of the Boards of Viewers, the expense of maintaining quarters for their accommodation and providing them with stenographers and clerical assistance, and the costs of proceedings before juries of view. The portion or the title referring to this matter is in these words, “'providing for the charges upon the respective counties, in the matter of salaries, costs and expenses thereof.” This language cannot be regarded as being anything but a plain indication that the bill contains provisions imposing on counties the salaries of the members of the Board, and the cost of its maintenance. It says so in plain words. It gives notice that the charges attending upon the establishing of the Board of Viewers in each county are to be placed upon the respective counties, and further specifies the particulars of the charges as being in the matter of salaries, costs and expenses thereof; that is, of the Board. Section 4 of the bill provides in substance that in counties having over one million inhabitants each member of the Board shall receive a salary of $5,000 per annum, payable out of the county treasury. In other counties each member shall receive not less than $2.00 nor more than $5.00 per day, as the Judges of each county may determine, to be paid out of the county treasury. The word salary is appropriate in the one sense, while in the other' the daily compensation would properly come under the reference in the title to “costs and expenses.” We think a common sense reading of the title shows that the word “thereof” at the end refers not to the immediate antecedent, but to the subject matter of the act, the Board of Viewers, to be established in each county. It was for this Board that provision was being made. Before the passage of this act, members of boards of viewers, road juries and similar bodies were paid daily wages for the time spent in the employment. The use of the word “salaries” in the title of this act appropriately refers to the annual compensation paid to the members of the Boards of Viewers in counties containing more than a million inhabitants. It will be noted that salaries are to be paid only in those counties. In other counties, containing less than one million inhabitants, daily compensation is to be made only for each day actually and necessarily spent by each member of the Board of Viewers in the performance of the duties of his office.

It is urged that the statute in question places upon the counties a considerable burden in the way of costs and expense, which has in such proceedings heretofore been borne by the parties thereto; and it is contended that the title is therefore defective in not giving explicit notice of this change. A moment’s reflection will, however, show that this criticism is in reality directed against the effect or result of the legislation. It is not the function of the title of a bill to catalogue the results which may flow from its enactment into law. These results may be many and far-reaching, and they may not even be known or anticipated to the full extent at the time of the passage of the bill. Under the constitutional requirement the purpose of the title is merely to give warning to the public and to the legislators of that which may actually be found in the body of the act, so as to lead to further inquiry. It is to the contents of the statute only that the title is required to point, and not to its results.

The Court below apparently sustained another objection, that the Act of June 23, 1911 violates section 6, article III of the Constitution, which provides “No law shall be revived, amended or the provisions thereof extended or conferred by reference to its title only, but so much thereof as is revived, amended, extended or conferred, shall be re-enacted and published at length.” In this we think he was mistaken, for the act seems to come directly within the rule laid down in Greenfield Ave., 191 Pa. 290, where Mr. Justice Mitchell said (p. 296) : “An act which is complete in itself — the purpose, meaning and full scope of which are apparent on its face — is valid, although it may operate to alter, extend or repeal a prior act or may provide for the means of carrying its provisions into effect by a reference to a course of procedure established by other acts of the legislature.” The same principle was again stated in Gilbert’s Estate, 227 Pa. 648, where Mr. Justice Elkin said (p. 651) : “An act complete in itself, which applies an established method of procedure, whether it be by common law, or statute, or joint operation of both, to a new class by general reference only, does not violate the constitutional provision as to republication, though it may operate to some extent as an extension of a previous statute.” See also Clarion County v. Clarion Township, 222 Pa. 350. The meaning of the statute under consideration is plain; it establishes a new system and is complete within itself in so far as its scope extends, and it needs the aid of no other statute to give it effect.

With the wisdom or desirability of the legislation we have nothing to do. Evidently it was felt that there was need of improvement in the character of the work done by viewers in estimating damages caused by the exercise of the power of eminent domain. The legislature has endeavored to meet this need by providing a system in which jurors and members of boards of view, through permanent appointment, may gain the knowledge and experience in dealing with these questions which will yield better results. If the method prescribed does not work well, or if the imposition of the costs of maintaining the system upon the counties shall prove to be burdensome or unjust, the remedy is to be sought from the legislature. Objections based upon such grounds are not for the proper consideration of the courts.

Bearing in mind that the title is not be an index of the contents of the bill, that it need not include subjects indirectly affected, and that it is not to be a catalogue of the effects of the legislation, we have examined the act in question, section by section, and do not find in it anything to which in the proper constitutional sense, the title does not fairly point, or which may not reasonably be considered as germane to that which is fairly indicated in the title. We therefore hold that the statute as a whole is constitutional.

The assignments of error in the appeal of Conrad S. Beber at No. 12 January Term, 1912 are sustained. The assignments of error in the appeal of the County of Berks at No. 13 January Term, 1912, are overruled, and the judgment of the court below, in so far as it holds any part of the act in question to be unconstitutional, is reversed.


author: Mr. Justice Potter,

text:
    Brown’s Petition.

      Constitutional law — Title of act — Amendment of act — Railroads —Road jury — Act of June 28,1911, P. L. 1128 — Statutes — Repeal.
    The act of June 23, 1911, P. L. 1123, is constitutional in all its parts. The act applies to the appointment of viewers to assess damages in railroad condemnation proceedings and repeals the provisions of the Act of February 19, 1849, P. L. 79, relating to the appointment of viewers in such proceedings.
    Argued Feb. 14, 1912.
    Appeal, No. 24, Jan. T., 1912, by Martha M. Brown and Mary J. B. Chew, from decree of C. P. Delaware Co., Dec. T., 1910, No. 216, dismissing petition of appellants for appointment of Jury of view.
    Before Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Petition for the appointment of seven viewers under the Act of February 19, 1849, P. L. 84.
    The opinion of the Supreme Court states the case.

      Error assigned was order refusing the petition.

      William, I. Schaffer, with him Samuel Chew, John J. Stetser and E. Wallace Chadwick, for appellants.
    The Act of June 23, 1911, is unconstitutional: Com. v. Herr, 299 Pa. 132; Provident Life & Trust Co. v. Hammond, 230 Pa. 407; Phœnixville Boro. Road, 109 Pa. 44; Com. v. Samuels, 163 Pa. 283; Mt. Joy Boro. v. Lancaster, Etc., Turnpike Co., 182 Pa. 581; Ridge Avenue Pass. Ry. Co. v. Phila., 124 Pa. 219; Stegmaier v. Jones, 203 Pa. 47; Dailey v. Potter County, 203 Pa. 593.
    The act providing for a county board of viewers, being unconstitutional and void in part is unconstitutional and void in tofo: Riccio v. Hoboken, 69 N. J. Laws 649 (55 Atl. Repr. 1109); Skagit County v. Stiles, 10 Wash. 388 (39 Pac. Repr. 116); Com. v. Potts, 79 Pa. 164; State v. Bedell, 50 Atl. Repr. 364; Mathews v. People, 202 Ill. 389 (67 N. E. Repr. 28); People v. Knoff, 198 Ill. 340 (64 N. E. Repr. 842); People v. Olsen, 204 Ill. 494 (68 N. E. Repr. 376); Newton County Board of Com’rs v. State, 161 Ind. 616 (69 N. E. Repr. 442); Malone v. Williams, 118 Tenn. 390 (103 S. W. Repr. 798); Cummins v. Gaston, 109 S. W. Repr. 476; Griffin v. State, 119 Ind. 520 (22 N. E. Repr. 7).
    The Act of 1911, if constitutional in whole or part, does not apply to railroad condemnations: Holman’s App., 106 Pa. 502; Monongahela Bridge Co. v. Ry. Co., 114 Pa. 478; Allen’s App., 81* Pa. 302; Butler’s App., 73 Pa. 448; Felt v. Cook, 95 Pa. 247; Com. v. Montrose Boro. Council, 52 Pa. 391; Kister’s Petition, 9 Pa. D. R. 64; York Gazette Co. v. York County, 25 Pa. Super. Ct. 517.
    A prior act is not impliedly repealed by a later act on the same subject where the respective objects of the two acts are different, and therefore any inconsistency between them is apparent rather than real: McFate’s App., 105 Pa. 323.

      George T. Butler, with him Henry C. Boyer, for appellee.
    The act applies to railroad condemnations: Clarion County v. Clarion Twp., 222 Pa. 350; Greenfield Ave., 191 Pa. 290; Com. v. Herr, 229 Pa. 132.
    April 8, 1912:
   Opinion by

Mr. Justice Potter,

It appears from the record in this case, that Martha M. Brown and Mary J. B. Chew, presented to the Court of Common Pleas of Delaware County, a petition for the appointment of seven viewers under the Act of February 19, 1819, P. L. 79, to assess damages for lands of the petitioners taken by the Philadelphia and Western Railway Company for railroad purposes. The court below refused the petition on the ground that it should have been presented under the provisions of the Act of June 23, 1911, P. L. 1123, for the appointment of three viewers. The petitioners have appealed and assign for error the order of the court dismissing their petition.

The first question raised by this appeal, as to the constitutionality of the Act of June 23,1911, P. L. 1123, has been disposed of in an opinion just handed down in Reber’s Appeal, 235 Pa. 622, from the judgment of the Court of Common Pleas of Berks County, in which we sustained the validity of the act.

The remaining question here presented for our consideration is whether the Act of 1911 applies to the appointment of viewers to assess damages in railroad condemnation proceedings. To answer this question we turn to Section 5 of the act, which provides: “Whenever hereafter a petition shall be presented to any court, judge or judges of this Commonwealth, praying the appointment of viewers, reviewers or re-reviewers, or of a jury of view, or of any person or body, under any designation, for the purpose of viewing, laying out, opening, grading, altering, widening, vacating, or constructing of roads, streets, highways, sewers or bridges; or of the assessment of damages and benefits occasioned by such laying out, opening, grading, altering, widening, vacating and constructing of roads, streets, highways, sewers or bridges; or occasioned by any appropriation of land, by municipalities and of other corporations having the power of eminent domain, the court shall appoint a board of view of three members — one of whom shall be learned in the law — from among the board of viewers of the county, as such viewers, reviewers, re-reviewers, or jury of view, or road jury, or commissioners of view.”

These broadly significant words “other corporations having the power of eminent domain” seem clearly to bring railroad companies within the operation of the act. The obvious purpose of the law is to establish a uniform method of selecting viewers, from a permanent board. The words in question follow a reference to the appropriation of land by municipalities, and group them with other corporations having the power of eminent domain. The word “of” is evidently inserted before “other corporations” by mistake, or is to be used in the sense of “by.” The language resembles that in Section 8, Article 16, of the Constitution, which reads thus: “Municipal and other corporations and individuals invested with the privilege of taking private property for public use shall make just compensation for property taken, injured or destroyed by the construction or enlargement of their works, highways or improvements.” In construing this provision in Chester County v. Brower, 117 Pa. 647, this court said (p. 656) : “The section referred to was intended to embrace, and the language thereof is broad enough to embrace every corporation and individual in the state clothed with the power of taking private property for public use.” To the same effect is Lamoreux v. Luzerne County, 116 Pa. 195.

In the act now before us, the words “municipalities and other corporations” are used with the same significance as “municipal and other corporations” in the section of the Constitution above quoted, as the subject matter, the taking of property under the power of eminent domain, is the same in each case. It therefore follows that the statute under consideration, which provides a method of carrying out the constitutional provision for assessing damages arising out of the exercise of the right of eminent domain, is to be construed in like manner, as including all corporations having that power. This is the plain import of the words. If it does apply to all such corporations, then manifestly it includes railroads, and it is inconsistent with prior acts providing other methods for the assessment of such damages, and under the 12th section, such acts are repealed. This would include the provisions of the Act of February 19, 1849, P. L. 79, which relate to juries of view, and under which appellants filed their petition. The court below was therefore right in holding that the Act of 1849 is repealed, in so far as it relates to the appointment of juries of view, and that the proceedings in the present case should have been brought under the provisions of the Act of June 23, 1911, P. L. 1123.

The assignments of error are overruled, and the order of the court below is affirmed.


text:
    Shields v. Aitken, Appellant.

      Wills — Construction — Life estate — Children — Estate in remainder — Partition — After-born children.

    1. Where a testatrix gives to her son and to her daughter all her estate “for and during their natural lives in equal parts, share and share alike and at the death of him or her as aforesaid .. .... to their children (my grandchildren) i. e. the share devised tc my son to go to his children, and the share to my daughter to go to her children,” the word “children” is a word of purchase, and not a word of limitation, and the son and the daughter take estates for life with remainder to their children.
    2. Where on a bill for partition it appears from the bill itself that one of the parties defendant had a life interest only in a share of the estate with remainder to his children, and through an oversight, no action is taken to protect the contingent interests of after bom children before the entry of decree for partition and the appointment of a master, the court may, before the sale is made, appoint a trustee to represent the contingent rights of such unborn children. Such action of the court cannot be regarded as an amendment to the bill and does not affect in any way the rights of the defendant in question or of his then existing children.
    3. On a bill for partition the court errs if it does not ascertain and define the respective interests of the parties before appointing a master to make partition; but if it appears that such action of the court does not harm any party in interest, the appellate court will not reverse the decree for such irregularity.
    Argued Feb. 19, 1912.
    Appeal, No. 240, Jan. T., 1911, by defendants from decree of C. P. Lackawanna Co., May T., 1909, No. 7, on bill in partition in case of M. J. Shields, et al., v. John W. Aitken, et al.
    Before Fell, C. J., Brown, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity for partition.
    From the record it appeared that the title to the real estate in question was derived from Anna M. Aitken, who died seized thereof on January 1, 1894, leaving a will by which she devised the property to her son John M. Aitken and her daughter Louise, “during their natural lives” and after their deaths to their children. The material portion of the will was as follows:
    “I give, devise and bequeath unto my son John W. Aitken, and daughter Louise, wife of Henry B. Jadwin, the use of all my estate, real, personal and mixed, of what nature of kind soever, and wheresoever the same shall be at the time of my death, for and during their natural lives, in equal parts, share and share alike, and at the death of him or her, the share thereby devised or bequeathed to him or her as aforesaid, I give, devise and bequeath absolutely to their children (my grandchildren), i. e. the share devised to my son John to go to his children, and the share devised to my daughter Louise to her children, share and share alike to their heirs and assigns forever.”
    The plaintiffs claimed under Louise Jadwin. The defendants were the son of the testatrix and her children.
    After the decree in partition was entered and a master appointed, but before the sale, the court appointed a trustee to represent the contingent rights of any unborn children of John W. Aitken.
    Other facts appear by the opinion of the Supreme Court.

      Errors assigned were (1) in confirming the return of sale; (3) in appointing a trustee; (5) in not ascertaining the parties in interest and their respective rights before referring the case to a master, and (8) in holding that John W. Aitken took a life estate only.

      Morton W. Stephens and Thos. F. Wells, for appellant.
    The decree resting on the master’s report has absolutely nothing to support it, and it is therefore a nullity: Palethorp v. Palethorp, 184 Pa. 585; Lincoln v. Africa, 228 Pa. 546.

      April 8, 1912:
    The son took a fee: McKee v. McKinley, 33 Pa. 92; Brinton v. Martin, 197 Pa. 615; Potts v. Kline, 174 Pa. 513; Haldeman v. Haldeman, 40 Pa. 29; Moyer v. Rentschler, 231 Pa. 620; Price v. Taylor, 28 Pa. 95; Potts’s App., 30 Pa. 168; Smith v. Lindsey, 37 Pa. Super. Ct. 171; Simpson v. Reed, 205 Pa. 53; Pifer v. Locke, 205 Pa. 616; Vilsack’s Est., 207 Pa. 611.

      B. D. Stuart, M. J. Martin and G. H. Horton, for appellees.
    The appointment of the trustees for unborn children and the amendment of the bill nunc pro tunc was properly allowed: Holmes v. Fulton, 193 Pa. 270; Dick’s App., 106 Pa. 589.
    John W. Aitken has only a life estate: Keim’s App., 125 Pa. 480; Hague v. Hague, 161 Pa. 643; Lancaster v. Flowers, 198 Pa. 614; King v. Savage Brick Co., 30 Pa. Super. Ct. 582.
   Opinion by

Mr. Justice Potter,

This was a bill in equity for the partition of real estate. The questions raised by the assignments of error are, 1. The regularity of the proceedings. 2. Whether the appointment of appellant as trustee for his unborn children was erroneously made. 3. Whether, under the will, appellant took a fee simple estate in one-half of the estate, and not merely a life estate.

As to the first question, it is true that the court below did not ascertain the interests and titles of the parties or embody them in its decree as it should have done. The proper practice in proceedings in equity for partition is pointed out in Palethorp v. Palethorp, 194 Pa. 408. See also Lincoln v. Africa, 228 Pa. 546; Dunshee v. Dunshee, 234 Pa. 550. In the present case, however, there was an agreement of counsel as to the facts, in which the interests of the respective parties were stated. No appeal was taken from the decree awarding the partition and referring the cause to'a-master. In the master’s report, which w,as confirmed by the court below, the interests and titles of all parties were ascertained, and were fixed in accordance with the hill and the agreement of counsel, as filed. Appellant raised in the court below the questions affecting his own interest and title and the correctness of the adjudication in so far as it concerned him, by his exceptions to the master’s report and to the decree confirming the sale; and these questions were considered by the court below, and they are also presented in the present appeal. While the court below therefore erred in not ascertaining and defining the respective interests of the parties, before appointing a master to make partition, yet it does not appear that the appellant was in any way harmed by such error. To send the case back on account of irregularity in this respect, would merely result in useless delay, without any corresponding benefit to anyone.

The interests in remainder given by the will of Anna M. Aitken were to the children of her son John W. Aitken and her daughter Louise Jadwin. The latter died before the filing of the bill in this case, and there was therefore no possibility of further children being born to her; but the son John W. Aitken is still living. Under the Act of June 3, 1840, P. L. 593, the court is empowered to make such order in regard to the purpart in which unborn persons may have an interest as equity and justice may require. This act related only to writs of partition at law, but under subsequent legislation full jurisdiction in partition has been conferred on courts of equity. See Acts of March 17, 1845, P. L. 158; February 14, 1857, P. L. 39; July 7, 1885, P. L. 257. In the bill filed in the present case it was not expressly averred that there was an interest in remainder in possible unborn children. But the provisions of the will are set forth, and it was stated that John W. Aitken was living, he being made a party defendant. The possibility of such contingent interests therefore appeared from the bill. The matter was apparently overlooked prior to the entry of the decree for partition, and the appointment of a master; but before the sale was made, the court did appoint a trustee to represent the contingent rights of unborn children of John W. Aitken, and the record was amended so that this appointment and order appeared, nunc pro tunc, as of the date of the filing of the bill. The order to this effect was made on April 20, 1911, and the sale took place April 22, and was confirmed nisi May 13, and absolutely on August 14, 1911. The property was not divided, or taken by the parties in interest, but was sold by the master. The order which was made for the protection and security of the unborn children seems to have been clearly within the provisions of the act, and was such “as equity and justice may require.” There is nothing to show that the appellant was in any way harmed by the omission to appoint a trustee earlier in the proceedings. Undoubtedly that would have been the better practice. It is suggested that the raising of questions as to the validity of the proceedings might affect the price to be obtained for the property, and prevent possible purchasers from bidding. The record does not show that this was the case, or that the property was not sold for a fair price. The action of the court in appointing a trustee to represent the interests of appellant’s unborn children can hardly be regarded as an amendment to the bill. This appointment did not affect in any way the rights of appellant or of his then existing children.

The clause of the will under consideration is as follows : “I give, devise and bequeath unto my son, John W. Aitken and my daughter, Louise, ...... the use of all my estate, real, personal and mixed, ...... for and during their natural lives, in equal parts, share and share alike, and at the death of him or her as aforesaid, I give, devise and bequeath absolutely to their children (my grandchildren) i. e. the share devised to my son John, to go to his children, and the share to my daughter Louise, to go to her children, share and share alike, their heirs and assigns forever.”

The court below held that under this clause, appellant took only a life estate in half of the premises which were the subject of partition. In this view we think he was right, as there is nothing in the will to show that testator used the word in any other than the ordinary sense, which is that of personal description, and in which it is a word of purchase and not of limitation. In Guthrie’s Appeal, 37 Pa. 9, Mr. Justice Strong said (p. 14) : “The word children is not a word of limitation, but of personal description. In Buffar v. Bradford, 2 Atk. 220, Lord Hardwicke said: ‘Children, in their natural import, are words of purchase, and not of limitation, unless it is to comply with the intention of the testator, when the words cannot take effect in any other way.’ ...... Admitting that the word ‘children’ may be construed to mean ‘heirs of the body,’ yet there must be an express warrant for this change of its legitimate meaning, under the hand of the author of the gift. The intention to use it as a word of limitation, contrary to its natural import, must be rendered clear by the words of the grantor or testator himself.” In Oyster v. Oyster, 100 Pa. 538, Mr. Justice Paxson said (p. 540): “Without reviewing the learning upon this subject, it is sufficient to say that the authorities are uniform that ‘children’ is as certainly a word of purchase as ‘heirs of the body’ are words of limitation.......This is the general rule, and the exceptions which from time to time have been recognized do not impair the rule itself. There are many instances in our state where ‘children’ has been held to be a word of limitation, but in all of them such construction was clearly in accord with the intent of the testators as gathered from the four corners of the will, as when ‘children’ has been used with ‘heirs of the body’ or ‘issue’ as its synonyms.” In Keim’s Appeal, 125 Pa. 480, Mr. Justice Sterrett said (p. 487) : “The general rule undoubtedly is, that under a devise to one for life, with remainder to his children, the first taker has no freehold of inheritance. The fact that the devisee was without children when the will was made, as well as when it took effect by the death of the testator, does not change the rule: Cote v. Von Bonnhorst, 41 Pa. 248.” This rule has been followed in the later cases. See Reimer v. Reimer, 192 Pa. 571, 573; Lancaster v. Flowers, 198 Pa. 614; Hoover v. Strauss, 215 Pa. 130, 131; Manning v. Bader, 224 Pa. 575. In Vaughan’s Estate, 230 Pa. 554, where a testator directed that the share of. his daughter be held in trust for “her and her children’s sole use and benefit” Mr. Justice Moschzisker said (p. 556) : “Under the law as established in Pennsylvania this gave the parent a life estate with remainder to her children in fee. The authorities on this subject are collated in Hague v. Hague, 161 Pa. 643. Also see Elliott v. Diamond Coal & Coke Co., 230 Pa. 423.”

In the present case the testatrix made plain the sense in which she referred to the “children” of her son and daughter, by adding the explanatory words “my grandchildren,” thus emphasizing the words as being of personal description. The assignments of error are overruled, and the decree of the court below is affirmed,


author: Mr. Justice Stewart,

text:
    Hunt, Appellant, v. Koehler.

      Husband and wife — Disability of wife to sue husband — Mortgage — Remainder interest.

    Where a husband and wife join in executing a mortgage on a remainder interest in real estate owned by the wife, and after default and the institution of a foreclosure suit on the mortgage, the life tenant dies, and the executor of the estate makes distribution thereof, taking a receipt in full from the wife for her share, excepting the bond, which the executor is to retain for the purpose of litigating in the name of the estate, but at the expense, charges and costs of the wife the executor cannot maintain a suit on the bond against the husband and wife to impose a liability upon the husband, although the bond and mortgage may have been originally given for the latter’s benefit. Such a suit is in reality an action at law by the wife against the husband and is a mere device to circumvent the law which prohibits a wife from suing a husband.
    Argued Feb. 19, 1912.
    Appeal, No. 243, Jan. T., 1911, by plaintiff from order of C. P. Lackawanna Co., Jan. T., 1908, No. 997, dismissing exceptions to auditor’s report in case of Holloway W. Hunt, Executor of the Estate of Carter Martin, deceased, v. Alice S. Koehler and Frederick M. Koehler.
    Before Fell, C. J., Brown, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Exceptions to report of Myer Kabatchnick, Esq., Auditor.
    Newcomb, J., dismissed the exceptions in an opinion in which he stated the facts to be as follows:
    The defendants are husband and wife. Mrs. Koehler was a beneficiary under the will of Carter Martin, deceased, and the contest grows out of a loan of funds of the estate made to her and her husband.
    Mr. Martin died in 1884, at Warren county, New Jersey, the place of his domicile. The plaintiff, of the same place, was the executor of his will as well as trustee of Ms estate during the life of testator’s daughter, Mrs. Sarah E. LaBar. The defendants reside in this city. Subject to Mrs. LaBar’s use for life, the estate was devised in equal shares to her three children, of whom Mrs. Koehler is one. Mrs. LaBar survived until February, 1910. This suit had then been pending upwards of two years. Since then final distribution has been made by the executor, and to all practical intents and purposes the estate has been fully settled, including the proceeds of the lawsuit, if any are to be realized. It is founded on defendants’ bond of July 2nd, 1901, to secure a loan of $2,000, which was negotiated with the executor by Mr. Koehler. Mr. Hunt would loan the funds of the estate only as against Mrs. Koehler’s share in the remainder, upon her husband joining in her bond in such form as was satisfactory to him; it was so done. In part the estate consisted of lands in New Jersey. As collateral to the bond defendants gave a mortgage on these lands. This, however, was never recorded nor foreclosed. The term of the bond was one year, with a provision that the interest should be “payable annually.” It was in fact extended from year to year by interest payments until July, 1907, the principal being reduced during that time to $1,800.
    It was also stipulated on the part of Mrs. Koehler “as a further condition ...... that in case of the death of her mother, Sarah E. LaBar, before this bond is paid and satisfied, or in case the interest or share of the said Alice S. Koehler in the land and premises mentioned in the said mortgage ...... should prove insufficient to pay and satisfy the same, then in either event, the said second party, executor as aforesaid, or his successors are ordered and directed to satisfy this bond or obligation out of any moneys in said estate belonging to said Alice S. Koehler and charge the same to her account as part of her share or interest in said estate,” etc.
    Mrs. LaBar’s death occurred, as above noted, in February, 1910. There were assets then in the executor’s hands payable to Mrs. Koehler in excess of the amount of the bond. By the following August he was prepared to distribute and make final settlement with all parties. Mrs. Koehler’s share of all the assets amounted to $13,856.37. It was partly cash and the balance in stocks and securities which the parties treated as cash. This, less the amount of the bond, was turned over to her by the executor against her release and receipt in full on August 20th, 1910. ' In form this was as follows: “In full of my distributive share in said estate, and under and by virtue of the last will and testament of said deceased — less a bond and mortgage of $1,800 and the interest now due thereon given,” etc., “and now under litigation at Scranton, Pa., and in consideration thereof I do hereby fully and absolutely acquit, release and discharge the said Holloway W. Hunt personally and as such executor and trustee, and also the estate of said deceased, of and from all actions, claims and demands whatsoever for or on account of the said distributive share or interest due me in said estate, as aforesaid stated, excepting the said bond and mortgage to be retained by said executor and litigated to a final conclusion in the name of the estate but at the expense, charges and costs of the said Alice S. Koehler.”
    From that date to this the claim has been without merit other than the entire candor and frankness of the parties who assert it. For, apart from this outspoken avowal in writing, Mr. Hunt testifies without reserve that he stands substantially discharged from his trust; that it only remains for him to file his releases and vouchers in the proper office; that in his settlement with all parties this loan has been accounted for and charged to Mrs. Koehler’s share; that no person other than Mrs. Koehler has any interest whatsoever in the suit; and that it was kept nominally alive at her request and for her sole use and benefit in an attempt to enforce payment by her husband.

      April 8, 1912:

      Errors assigned were in dismissing exceptions to adjudication.

      W. J. Torrey, of Welles é Torrey, for appellant.

      W. S. Diehl, of Watson, Diehl & Watson, with him James K. Gearhart, for appellee.
   Opinion by

Mr. Justice Stewart,

The legal plaintiff to the action is absolutely without interest in the result, even to the extent of costs, for as against these he has been indemnified. He sues as executor, on a bond given him as executor, and which by its terms authorized him to apply in payment thereof whatever was required out of the distributive share of one of the makers in the estate he represented. This he has done, and has been released by such distributee from all liability and accountability therefor. It is of no possible consequence that under the terms of the bond he was not obliged to adopt this method of securing payment, but had the alternative remedy of an action on the bond. The important thing is that he did adopt the former rather than the latter, and the bond has been in fact paid. No use plaintiff has been brought upon the record, but the evidence discloses that the substantial plaintiff claiming to recover on the ground of equitable interest, is Mrs. Alice S. Koehler, herself one of the two defendants in the action, the other being her husband, Frederick M. Koehler, against whom recovery is sought. Her claim is that the bond sued on was given for the debt of her husband, Frederick M. Koehler; that she was simply surety thereon; that the debt has been paid by her, and that therefore she is in equity entitled to recover over. What is this but an action at law by the wife against the husband? It is too plain to be disguised by any refinement of statement as to the nature of the claim, that this is what the proceeding means. The result of the action concerns only the wife, and can involve no one but the husband. The agreement between her and the executor that the action should be maintained in the latter’s name as legal plaintiff, as a device to circumvent the law which prohibits a wife from suing her husband, lacks even the merit of ingenuity. The right to sue the obligor in an action by a surety to recover over against the principal obligor does not depend upon agreement with the obligee. If the purpose in making the agreement in this case was to avoid bringing the use plaintiff upon the record or to the light, and thereby conceal the true nature of the action, — and we can conceive of no other — failure might readily have been foreseen. An admission by the legal plaintiff that he was without interest, would have made it indispensable to the further maintenance of the action that a subsequent use plaintiff should appear.

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


author: Me. Justice Stewart,

text:
    Kohn, Appellant, v. Clark.

      Negligence — Fire escapes — Number of fire escapes — Gase for jury.

    1. The statutory duty resting on the owner of a building of three or more stories and used as a factory or workshop, does not end in all eases with the erection of a single fire escape, even though in the detail of its construction it conforms to the requirements of the act.
    2. In an action against the owner of a building to recover damages for personal injuries sustained by the plaintiff in escaping from the building while it was on fire, it is reversible error for the trial judge to charge that one external fire escape properly built was a full compliance with the requirements of the Acts of Assembly, where it appears that the building in question was three stories high, and that at the time of the fire sixty-five women, including the plaintiff, were at work on the third floor.
    3. In such a case whether one external fire escape was an adequate provision for escape during a fire, considering the size of the building and the number of inmates, and whether it was so arranged as to make it readily accessible, safe and adequate for the escape of the inmates, were clearly questions for the jury. The fact that the fire escape was properly constructed is immaterial.
    4. Where an owner of a building supplies an inadequate means of escape, he cannot claim that injuries sustained by a person in escaping from the building while burning, were due to the want of familiarity on the part of the injured person with the means of escape that had been provided. It is not the lack of familiarity with the means of escape, but the inadequacy of the means, that is tht, proximate cause of the injuries in such a case.
    Argued Feb. 20, 1912.
    Appeal, No. 254, Jan. T., 1911, by plaintiff, from judgment of C. P. Lackawanna Co., May T., 1908, No. 712, on verdict for defendants in case of Ernestine Kohn v. John M. Clark and William H. Clark.
    Before Fell, C. J., Brown, Potter, Stewart and Mosohzisker, JJ.
    Reversed.
    Trespass to recover damages for personal injuries.
    The facts are stated in the opinion of the Supreme Court.

      The court gave binding instructions for defendant.
    Verdict and judgment for defendants. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendants.

      Will A. Leach, with him George Morrow, for appellant.
    The case was for the jury: Godley v. Hagerty, 20 Pa. 387; Carson v. Godley, 26 Pa. 111; Sewell v. Moore, 166 Pa. 570; McLaughlin v. Armfield, 58 Hun. 376 (12 N. Y. Supp. 164); Arnold v. Nat’l Starch Co., 194 N. Y. 42 (86 N. E. Repr. 815).

      Everett Warren, of Warren, Knapp & O’Malley and O’Brien & Kelly, with them Thomas F. Wells, for appellees.
    There was no breach of any duty, whether imposed by statute or by the common law: Schmalzried v. White, 97 Tenn. 36 (36 S. W. Repr. 393); Schott v. Harvey, 105 Pa. 222; Keely v. O’Conner, 106 Pa. 321; Bonbright v. Schoettler, 127 Fed. Repr. 320.
    The statutes relating to fire escapes are in derogation of common law rights, are highly penal and must therefore be strictly construed. They cannot be extended by implication to include any case which is not expressly within their terms: Schott v. Harvey, 105 Pa. 222; Sewell v. Moore, 166 Pa. 570; Com. v. Emsley, 5 Pa. C. C. R. 476.
    No act or omission of the defendants was in any way the proximate cause of the plaintiff’s injury: Sewell v. Moore, 166 Pa. 570; Baker v. Thompson, 228 Pa. 543.
    The real proximate cause of the injury to the plaintiff was the blockade on the external fire escape: Phila. & Reading R. R. Co. v. Boyer, 97 Pa. 91; Oil Creek Allegheny River Ry. Co. v. Keighron, 74 Pa. 316; Baker v. Thompson, 228 Pa. 543; Ring v. Cohoes, 77 N. Y. 83; Ruppert v. Brooklyn, Etc., R. R. Co., 154 N. Y. 90 (47 N, E. Repr. 971); Fogg v. Nahant, 98 Mass. 578; Harvey v. R. R. Co., 88 N. Y. 481.
    April 8, 1912:
   Opinion by

Me. Justice Stewart,

The plaintiff was one of a large number of female operatives in the employ of a company engaged in the manufacture of underwear, in the city of Scranton. Some sixty-five of these operatives, including the plaintiff, were assigned, for purposes of their work, to a room on the third and highest floor of a large building which the company occupied under lease from the defendants, who were the owners. The building was burned January 17, 1908, at a time when the operatives Avere engaged therein. The plaintiff in making her escape sustained certain injuries. Her effort here was to recover damages on account of the same from the defendant, on the ground that the injuries she sustained are referable to their failure to provide safe and adequate means to escape, as the proximate cause. Binding instructions were given in favor of the defendants for two reasons: first, because the fire-escape on the building complied with the law; and, second, because the proximate cause of the injury was the inability of the operatives to properly use the means of escape provided, due to their unfamiliarity therewith, a condition over which defendants had no control. The appeal challenges the law as stated by the trial judge, and his conclusions of fact in regard to the proximate cause as well. As to the first, we are of opinion it was error to hold as matter of law that the one external fire escape which Avas constructed against the building, was full compliance with the requirements of the act of assembly. That this fire-escape was of proper construction and was maintained in satisfactory working condition abundantly appears; but, it is a mistake to suppose that the statutory duty resting on the owner of a building of three or more stories and used as a factory, or workshop, ends in all cages with the erection of a single fire-escape, even though in the details of its construction it conforms to the requirements of the act. True, the Act of July 12, 1897, P. L. 259, requires that “every such building in which employees or operatives are usually employed at work in the third or higher story shall be provided with a permanent, safe, external means of escape therefrom in case of fire, independent of all internal stairways” and it defines the degree of slant such external escape shall have and the size of the steps; but it contains this further provision, not to be overlooked: “The number and location of such escapes to be governed by the size of the building and the number of its inmates and arranged in such a way as to make them reasonably accessible, safe and adequate for the escape of said inmates.” Whether the one external fire-escape that was here constructed was an adequate provision for escape during a fire, considering the size of the building and the number of inmates, and whether it was so arranged as to make it readily accessible, safe and adequate for the escape of the inmates, were clearly questions for the jury. We have no disposition to weaken by refinement of construction the obligation which this wise and salutary legislation imposes on the owners of such buildings. The act provides an easy way by which they may relieve themselves of responsibility. If they would avoid having a jury, in the event of fire, pass upon the question of their full compliance with the requirements of the act, all they have to do, in advance of any loss or injury, is to obtain from the proper officials a certificate that the provision they have made is adequate and in compliance with the law. Failing to do this, the jury is the only tribunal that can decide the question. It is nothing to the point to argue that here a number of witnesses called by defendants testified that the fire-escape that was attached to the building was properly constructed; that it was of the design that ordinarily obtains; and that their testimony was uncontradicted. Not one of these witnesses says that, having regard to the size of the building and the number of inmates, that it was “readily accessible, safe and adequate for the escape of the inmates,” which was the true question in the case.

So too we think the question of proximate cause was for the jury. It may be that one cause of plaintiff’s failure to escape unhurt was want of familiarity on the part of the operatives with the means of escape that had been provided; but, suppose the means provided were found to be short of what the law requires — a matter which the jury as we have said alone could determine— in such case to hold want of familiarity to have been the proximate cause, is to imply a duty on the part of the employer to make good the owner’s default, by instructing and training his employees as to the best way of using inadequate means of escape. However much such instruction and training might have conduced to safety, no statutory duty required it. What the learned trial judge held to be an intervening, and therefore proximate cause, was certainly one not chargeable to this plaintiff. Not only so, but it was one over which every owner of a building used as this was has abundant reason to. anticipate. Orderly procession out of a burning building containing on its third floor sixty-five inmates is hardly to be expected.

In what has been said the reference is to the one particular act of negligence that is sufficiently declared upon in the statement of claim.

The judgment is reversed and venire de novo awarded.


author: Per Curiam,

text:
    Aumick v. Smith, Appellant.

      Deed — Essentials of a deed — Changing course of descent — Intestate laws.

    Collateral heirs of a decedent do not divest their title to real estate of which their decedent died seized, intestate and without issue, by the execution of a paper during the lifetime of the decedent which released under certain contingencies, their interest in the decedent’s estate, but which contained neither grantee, description of real estate, nor words of inheritance. Such a writing is wanting in the requisites of either a deed or a release.
    Argued Feb. 20, 1912.
    Appeal, No. 288, Jan. T., 1911, by defendants, from judgment of C. P. Wyoming Co.. Oct. T., 1910, No. 88, for plaintiffs on case tried by the court without a jury in suit of Wesley Aumick arid Mary E. Whitwell v. Justus Smith, Executor of Susannah Aumick et al.
    Before Fell, C. J., Brown, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Ejectment for land in Tunkhannock Borough.,
    The case was tried by Terry, P. J., without a jury pursuant to the Act of April 22, 1871, P. L. 109.
    The facts are stated in the opinion of the Supreme Court.

      James Wilson Piatt, with him B. W. Lewis, for appellants.
    The paper in question conveyed an expectancy in William Aumick’s estate to William Aumick and Susannah Aumick, his wife. It was an estate in entireties to William Aumick and his wife, and as he died before his wife the whole title and interest vested in his wife: Bramberry’s Estate, 156 Pa. 628; Gillan v. Dixon, 65 Pa. 395; Alles v. Lyon, 216 Pa. 604; Young’s Estate, 166 Pa. 645.
    The use of the word “heirs” is not under all circumstances absolutely essential in order to convey a title to real estate in fee: Lemon v. Graham, 25 W. N. C. 339.

      April 8, 1912:
    A deed of release, or quit-claim or confirmation is a valid instrument, although in fact it convey no interest in the land and have no other legal effect than to quiet the fears of the parties: Coleman v. Reynolds, 181 Pa. 317.
    The release is under seal and is good had no consideration been shown: 34 Cyc. 1049; Schuylkill Nav. Co. v. Harris, 5 W. & S. 28.
    If it was an assignment of an expectancy it was good: Caulfield v. VanBrunt, 173 Pa. 428; Kuhns’s Estate, 163 Pa. 438; Power’s Appeal, 63 Pa. 443; Collins’s Appeal, 107 Pa. 590; Jordan v. McClure, 85 Pa. 495; East Lewisburg Lumber & Mfg. Co. v. Marsh, 91 Pa. 96; Ruple v. Bindley, 91 Pa. 296; Patterson v. Caldwell, 124 Pa. 455; Fritz’s Est., 160 Pa. 156; Wilson’s Est., 2 Pa. 325; Woodward’s Est., 1 Chester County, 417.

      Asa S. Keeler and O. Smith Kinner, for appellees.
    The “paper” lacks all of the requisites of a valid deed of conveyance: Kirk v. King, 3 Pa. 436; Huss v. Morris, 63 Pa. 367; Grosvenor v. Cook, 8 Lack. Leg. News 205; Africa v. Trexler, 232 Pa. 493; Schrack v. Zubler, 34 Pa. 38; Bonaffon v. Peters, 134 Pa. 180; Lennig’s Estate, 182 Pa. 485; Rapp v. Rapp, 6 Pa. 45; Smith’s Estate, 210 Pa. 604; Kline v. Peiffer, 3 Berks County Leg. Journ. 240; Patterson v. Caldwell, 124 Pa. 455; Bayler v. Com. 40 Pa. 37; Jones v. Bland, 112 Pa. 176; Beam v. Gardner, 18 Pa. Super. Ct. 245; Mobley v. Bruner, 59 Pa. 481.
   Per Curiam,

This was an ejectment brought by the heirs of William Aumick who died intestate seised of the land against the devisees of his widow. The plaintiffs and their brother, William Aumick, were children of Andrew Aumick and in the settlement of their interests in the estate of their father, William Aumick and his wife executed and delivered to the plaintiffs a quit-claim deed to certain land and the plaintiffs executed and delivered to him a writing as follows:

“Know all men by these presents that we, Wesley Aumick and Mary E. Eice, in consideration of the remise and release to us by William Aumick of all his right, title and interest in and to the estate of Andrew Aumick, late of Eaton Township, deceased, and the joining in the deed therefor by Susannah Aumick, his wife, and the further sum of one dollar to us in hand paid, do hereby release and quitclaim any and all the interest we may, might or could have in the estate of said William Aumick as heirs-at-law if he should be deceased before the decease of his wife, the said Susannah Aumick.”

Seven years after the date of this writing, William Aumick died intestate without issue and left to survive him a widow who died eight years later and who, by her will, gave all the residue of her estate to the defendants. Under the intestate laws the title to the land in question, on the death of William Aumick, vested in the plaintiffs, and they were entitled to recover unless their claim was defeated by the writing signed by them. We cannot give this effect to the writing, since it is wanting in the requisites of a deed or a release.

The judgment is affirmed.