text:
    Shower’s Estate.

      Trust and trustees—Active trust—Will.

    Testator gave the income from the residue of his estate to his wife, subject to certain charges. He then directed his executor to have a trustee appointed for one of his two sons and his two daughters. He provided further as follows: “After the death of my wife I direct all my estate then remaining to be divided equally between all my children share and share alike, the trustee or trustees appointed as before provided to receive in trust for my son and daughters before named the share to which they may be entitled respectively and to invest the same as he or they may deem most safe and profitable for my children above named in conformity, nevertheless, with the laws of Pennsylvania regulating and directing the investments and security of the moneys wherein infants or minors have an interest, and further direct the trustee or trustees so to control the shares of my three above-named children and the investments thereof that they, my sons and my daughters may enjoy the interest thereof only but in no way impair or dimmish the principal.” The other son died in testator’s lifetime, leaving one child. Testator then made a codicil directing that the share which he had given absolutely to this son should be invested by the trustee of his other children, the income to be used for the nurture and education of the child, and in case the child should die unmarried and without issue, its share should be divided among testator’s other children subject to the same trust provisions as were imposed on their other interests in his estate.
      Held, that upon the death of the widow the children were not entitled to their shares absolutely, but that the trust was an active one for their lives, and that it was immaterial that there was no gift over, or that the absolute interest first given was restricted by the subsequent trust provision.
    Subsequent provisions in a will will not avail to take from an estate previously given, qualities that the law regards as inseparable from it, as, for example, alienability, but they are operative to define the estate given, and to show that what without them might be a fee, was intended to be a lesser right.
    A gift of the income of an estate with no limitation over of the principal is an absolute gift of the property or fund itself; but the application of the rule in any particular instance necessarily depends upon the fact whether the testator has employed language in a subsequent part of his will which renders the rule inoperative.
    Argued Jan. 17, 1905.
    Appeal, No. 333, Jan. T., 1904, by Frederick A. Shower, Sarah E. Baxter and Clara Shirk, from decree of O. C. Phila. Co., Jan. T., 1880, No. 351, dismissing exceptions to adjudication in estate of Frederick A. Shower, deceased.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Exceptions to adjudication.
    The facts are stated in the opinion of the Supreme Court.

      Brrors assigned were in dismissing exceptions to adjudication.

      Joseph W. Shannon, for appellants.
    This is a trust for those not under disability, to whom the entire beneficial interest is given by the testator, and there is no limitation over upon the happening of an event within the period permitted by the rule against perpetuities. The trust is executed: Culbertson’s Appeal, 76 Pa. 145; Shallcross’s Est., 200 Pa. 122; Sharpless’s Est., 151 Pa. 214; Bayard’s Est., 6 Pa. Dist. Rep. 206; Minnich’s Est., 206 Pa. 405; Krebs’s Est., 184 Pa. 222 ; Hellman v. Hellman, 4 Rawle, 440; Shriver v. Cobeau, 4 Watts, 130; Williard v. Davis, 3 Penny. 86.

      E. B. Hodge and B. L. Ashhurst, for appellee.
    The trust was active: Beck’s Est., 133 Pa. 51; Butler v. Butler, 9 Phila. 269; Rife v. Geyer, 59 Pa. 393; Shallcross’s Est., 200 Pa. 122; Culbertson’s App., 76 Pa. 145; Sharpless’s Est., 151 Pa. 214; Silknitter’s App., 45 Pa. 365; Frantz v. Race, 205 Pa. 150.

      March 27, 1905 :
   Opinion by

Mb. Justice Mestbezat,

By his will dated February 6, 1873, and probated October 19, 1878, Frederick A. Shower gave the income from the residue of his estate, after the payment of debts and funeral expenses, to his wife, Elizabeth, for life, subject to the maintenance and burial of his two sisters. He then directed his executor to have a trustee appointed for his son, Frederick A. Shower, and his two daughters, Sarah E. Baxter and Clara Shirk, and provided further as follows: “ After the death of my wife, Elizabeth, I direct all my estate then remaining to be divided equally between all my children share and share alike; the trustee or trustees appointed as before provided to receive in trust for my son Frederick and daughters Sarah and Clara before named the share to which each may be entitled respectively and to invest the same as he or they may deem most safe and profitable for my children above named in conformity, nevertheless, with the laws of Pennsylvania regulating and directing the investments and security of the moneys wherein infants or minors have an interest, and further direct the trustee or trustees so to control the shares of my three above named children and the investments thereof that they, my son Frederick and my daughters Sarah and Clara may enjoy the interest thereof only but in no way impair or diminish the principal. ” The testator appointed an executor and authorized him to make such changes in his investments as he deemed proper and to make sufficient deeds for the conveyance of any or all of his real estate and “ enjoined him carefully to observe that the trustee or trustees as also the surety or sureties for them continue to be responsible and their estates available for the value of the trust estate reposed on them. ” By a codicil dated September 11, 1874, the testator directs that the share of his estate to which his son, George, who died after the execution of the will, would have been entitled shall be invested by the trustee of his other children and the interest of such investment shall be used for the nurture and education of George’s child, and in case the child should die unmarried and without issue, its share shall be divided between testator’s other children subject to the same trust provisions as were imposed on their other interests in his estate.

The testator left to survive him his wife, Elizabeth, and four children, Edward, Sarah, Clara and Frederick A. Shower, and one grandchild, Ella Shower, daughter of his deceased son, George, who at the time of the audit had attained her majority. His son, Edward, died intestate, unmarried and without issue, April 2, 1883, and his wife died February 25, 1904.

By an adjudication of the first account of the trustee, filed May 11, 1880, the residue of the testator’s estate was awarded to the widow for life charged with the payment of the annuities to the testator’s sisters, in accordance with the provisions of the will of the deceased. By the death of the widow, the principal of the estate became distributable and the trustee filed another account which was called for audit on May 5, 1904. At the audit it was claimed by the three children of the testator that the trust was a dry or executed trust and that they were 'entitled to have possession of the corpus of their shares of the fund for distribution. The auditing judge held, however, that the trust was a valid, active trust and awarded the principal of the fund to the accountant in trust for the children. Exceptions to the adjudication were dismissed by the court below and from that decree this appeal was taken by the three children.

It is too plain for argument that unless we disregard the intention of the founder, clearly expressed in his will, we must sustain this trust. The language employed as well as the whole scheme of distribution of his estate as disclosed by the entire will shows conclusively that the three children of the testator, who are the appellants here, were not to have an unrestricted or absolute interest in their shares of his • estate. His first thoughts were of his wife and he provides for her. She is given the entire estate for life, subject to the payment of his debts and certain annuities to his sisters. No limitation or restriction whatever is placed upon her interest in the estate, but she was “to enjoy the rents, issues and profits of my real estate and the interest and dividends on all my investments.” Before the testator makes any disposition of the residue of his estate after giving a life interest to his wife, he clearly discloses in the next paragraph of his will the fact that for some reason, entertained by him, he regarded three of his four children as incapacitated for the successful control and management of property. He, therefore, directs that his executor have appointed “ one or more careful and discreet person or persons as trustees for my son Frederick A. Shower and my daughters Sarah E. Baxter and Clara Shirk.” Having thus made provisions for the protection of the shares of his estate to be given three of his children, he directs “ all my estate then remaining ” to be divided equally among all his children. At that time he had four children, a son George, and the three appellants. George took his share of the estate unfettered and unclogged with any conditions and without the intervention of a trustee, but as to the appellants, the testator added in immediate connection with the gift to the four children, the clause, “ the trustee or trustees appointed as before provided to receive in trust for my son Frederick and my daughters Sarah and Clara before named the share to which each may be entitled respectively.” This was a gift of the corpus of the estate to the trustee of the appellants. He took the legal estate and they, the equitable. Had the testator stopped here, the trust would clearly have been a-dry trust which the statute would have executed and rendered inoperative. He, however, did not leave the shares of his children thus unguarded and unprotected, but proceeded to throw around their interests in his estate restrictions and limitations manifestly evincive of an intention not only to deprive them of the use of the principal, but also to deny them the free and unrestricted use of the income. Having placed their shares in the hands of a trustee, the testator then imposed upon the latter active duties in regard to them. He directs the trustee “ to invest the same as he or they may deem most safe and profitable for my chi] dren ” in certain defined securities. The next clause of the will is : “ and further direct the trustee or trustees so to control the shares that they, my son Frederick and my daughters Sarah and Clara, may enjoy the interest thereof only and in no way impair or diminish the principal.” The testator, therefore, declares in terms that the trustee shall so control the shares of the cestuis que trust that they shall in ño way impair or diminish the principal. They are, therefore, limited to the income, and upon the enjoyment of that the testator has laid a restriction. The trustee is authorized to invest and receive the income, but he is enjoined so to control the invest-merits that the cestuis que trust “may enjoy the interest thereof only.” The duty, therefore, is imposed upon the trustee to protect the income arising from the shares of the cestuis que trust so that they may receive and enjoy it. To make effective this clearly disclosed purpose of the testator, it is requisite that while the income or interest is in the hands of the trustee it shall not be liable for the debts of the beneficiaries or subject to anticipation by them. If they may dispose of the income before it reaches their hands, or it may be made subject to the payment of their debts by attachment or other process of the law, then it is manifest that the restrictions thrown around the fund by the testator will not have accomplished their purpose, and the intention, as expressly declared in his will, that his children may enjoy the estate he gives them will be defeated. His reasons for the discrimination which he makes between his children we cannot know, but hi's intention to make such discrimination his will declares. He gave his son George the one fourth of his estate absolutely, but the shares of his other three children, the appellants, he fettered with a trust to the extent that until they had obtained the actual possession of the income the cestuis que trust were impotent to control or dispose of it. The purpose to thus restrict the estate of his three children is further disclosed by the codicil which was made nearly two years after the will. George Shower, his son, had died in the meantime, leaving a widow and one child. The testator in the codicil directs the share which he had given George to be invested by the trustee of his other children and the interest to be used for the nurture and education of George’s child, and upon her death, unmarried and without issue, to go over to his three children. He, however, did not give them the share absolutely, as he had given it to George, but “ subject to the same provisions as to a trustee as I have hereinbefore mentioned.”

It is settled’by our cases that an estate of inheritance in real estate or an absolute interest in personalty given in a will may be reduced to a lesser estate if the subsequent language of the instrument unequivocally shows that such was the intention of the testator. “No principle is better settled,” says Strong, J., in Sheet’s Estate, 52 Pa. 257, “than that if a testator in one part of his will give to a person an estate of inheritance of land, or an absolute interest in personalty, and in subsequent passages unequivocally shows that he means the devisee or legatee to take a lesser interest only, the prior gift is restricted accordingly. Subsequent provisions will not avail to take from an estate previously given, qualities that the law regards as inseparable from it, as, for example, alienability; but they are operative to define the estate given, and to show that what without them might be a fee, was intended to be a lesser right.” This language is quoted with approval in Snyder’s Appeal, 95 Pa. 174; Good v. Fichthorn, 144 Pa. 287; and Krebs’s Estate, 184 Pa. 222.

The appellants contend that as there is no limitation over of the principal and they are all sui juris, they are entitled to the whole beneficial interest or corpus of their shares of the estate, and that there is nothing in the will which can be construed so as to make a spendthrift trust. We concede the rule invoked by the,,appellants that a gift of the income of an estate with no limitation over of the principal is an absolute gift of the property or fund itself. Its application, however, in any particular instance necessarily depends upon the fact whether the testator has employed language in a subsequent part of his will which renders the rule inoperative'. Such is the case here. The testator has explicitly disclaimed the intention of giving the corpus of the estate to the children by declaring that they may enjoy the interest only and in no way diminish the principal. Hence, the rule can have no:-application here, as it would defeat the intention of the testator clearly disclosed by the language of the will. Nor is the fact that there is no limitation over of the principal sufficient to control the quantum of the estate in the cestuis que trust: Deibert’s Appeal, 78 Pa. 296; Krebs’s Estate, 184 Pa. 222; Frantz v. Race, 205 Pa. 150. The intention of the testator here to negative the idea that the whole beneficial interest or corpus of the estate was given the cestuis que trust is as clearly disclosed as in Deibert’s Appeal where the court speaking through Shakswood, J., says: “ What is given to the two children is simply the interest; ‘they shall yearly draw the interest.’ Some doubt might arise if the case rested there; for as the estate of the beneficiaries is not expressed to be for life, and there is no bequest over, it might be said that the absolute bequest of the interest would carry the principal, as a devise of the rents and profits does the land. But here this consequence is precluded by the direct provision of the will; an expression of the intention of the testator which, as it is perfectly lawful, cannot be disregarded.”

Our conclusion antagonizes none of the decisions of this court and is supported by the two recent cases of Krebs’s Estate, 184 Pa. 222, and Minnich’s Estate, 206 Pa. 405. In the former, the testator after having given a life estate to his wife, gave all his property real and personal in equal shares to his children “ with the condition that George J. Krebs (a son) shall only receive the interest of his share, or as much as in times of sickness or accident my executor will give him to meet his wants.” There was no gift over of the principal of George’s share. It was held, however, that the trust in respect of it was active and the petition to dismiss the trustee was refused. It was also held, as in Sheet’s Estate, 52 Pa. 257, that if a testator in one part of his will gives to a person an estate of inheritance of land, or an absolute interest in personalty, and in subsequent passages unequivocally shows that he means the devisee or legatee to take a lesser interest only, the prior gift is restricted accordingly. In Minnich’s Estate, a son’s share of the estate was given to a trustee to invest, and if in real estate to permit him to occupy it, and to pay the taxes and repairs if the son failed to do so, with the provision that the income was not to be in anywise liable for any debts owing by the son nor for any debts that might thereafter be contracted by him. There was no gift over of the real estate, but it was held that a spendthrift trust was created which could not be allowed to be defeated by delivering the corpus of the estate to the cestui que trust.

While the phraseology employed by the testator in defining the interest or estate given the cestuis que trust lacks some of the characteristics of a spendthrift trust, yet we think the language of the will, as pointed out above, conveys a clear intention to make the gift available solely for their own personal enjoyment without the right of anticipation or liability to creditors. Where such appears in the will to the manifest intention of the testator, a spendthrift trust will be sustained, although the testator has not provided in terms that the estate of the cestui que trust shall not be liable for his debts. In Stambaugh’s Estate, 185 Pa. 585, it was held that a spendthrift trust was created where the testator directed that a certain part of his estate should be held for his son by a trustee who should pay to the son the yearly income thereof, and at the death of the son the principal should be paid to his heirs. In the opinion delivered by Chief Justice Paxson, it is said: “ Is this a spendthrift trust ? It may be admitted that it lacks some of the usual provisions of such a paper, notably the absence of any clause protecting the income from attachment, etc. If, however, we can gather from the will itself and from the light of the circumstances surrounding the testator at the time he made it, that his intent was to create a spendthrift trust, such intent ought not to be defeated because his conveyancer blundered. . . . When we come to examine this will we find that as to several of the legatees, children of deceased sons, the legacies are given absolutely. . . . But when it comes to the shares of his two sons, Nathaniel and Moses, he places their shares in trust, in precisely the same terms. . . . The latter (testator) had certainly some object in creating this trust for Moses. . . . The mere fact of the gift only of the income, and the interposition of a trustee, implies distrust as to his son. . . . This intent (to create a spendthrift trust) is not to be set aside because it is not clearly expressed by his scrivener.” This case is followed and the language quoted by the late Chief Justice Green in his opinion in Winthrop Company v. Clinton, 196 Pa. 472 where other decisions are also cited to sustain the principle.

W.e are of opinion that Frederick A. Shower by his will limited and restricted the use of the estate he gave his three children so that they could enjoy only the income thereof and without the right of anticipation and not subject to the claims of their creditors in the hands of the trustee. It is, therefore, necessary in order to carry out the intention of the testator that the corpus of the estate given the cestui que trust remain in the possession and control of the trustee, and hence, the trust is active and must be continued.

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


source: Caselaw Access Project

author: Mr. Justice Mestrezat,

license: Public Domain

text:
    Wetherill, Appellant, v. Gallagher.

      Equity—Jurisdiction—Parties—Large number of parties,—BailmentBoilers—Fixtures.

    Where boilers are delivered to a lessee of a building under what is apparently a contract of bailment, and the lessee, after attaching the boilers to the building and making some payments under his contract, becomes insolvent, and is declared a bankrupt, the original vendor of the boilers may maintain a bill in equity, to prevent interference with the boilers, against the registered owner of the building and certain parties who are alleged to be in collusion with the registered owner to defraud complainant, and also against the mortgagee of the building who objects to the removal of the boilers, and also against the bankrupt and his trustee.
    In such a case the common-law remedies of assumpsit, trover and replevin will not afford the complainant either an adequate or effective remedy.
    Argued Jan. 25, 1905.
    Appeal, No. 329, Jan. T., 1904, by plaintiffs, from decree of C. P. No. 5, Phila. Co., June T., 1904, No. 3922, sustaining demurrer to bill in equity in case of Robert Wetberill and Richard Wetherill, copartners, trading as Robert Wetherill & Company, v. Francis G. Gallagher, S. Arthur Love, Emma R. M. Love, The Fidelity Trust Company, surviving executor of Henry Gibson, deceased, and the Downing Paper Company, and James I. Lineaweaver, trustee in bankruptcy of the Downing Paper Company.
    Before Mitchell, C. J., Fell, Bkown, Mestkezat and Elkin, JJ.
    Reversed.
    Bill in equity for an injunction.
    The facts are stated in the opinion of the Supreme Court.

      Errors assigned were in sustaining the demurrer and dismissing the bill.

      John, G. Johnson, with him Erederieh J. Geiger, for appellant.
    It is respectfully submitted that the facts alleged in the bill lay grounds for equitable relief under the following distinct heads of equity jurisdiction: (1) The right of an owner to demand a return of property upon determination of a bailment. (2) The discovery of facts material to a just determination of the issue. (3) The prevention and restraint of the continuance of acts prejudicial to the rights of individuals. (4) The affording specific relief when a recovery in damages would be an inadequate remedy. (5) The prevention of fraud: Kemp v. Westbrook, 1 Ves. 278; White Mts. R. R. Co. v. Bay State Iron Co., 50 N. H. 57; Bank of U. S. v. Biddle, 2 Pars. 81; Mackintosh v. Tracy, 4 Brewster, 59; Eckart v. Gerlach, 12 Phila. 530; Denny v. Brunson, 29 Pa. 382.
    The plaintiffs have not a good and sufficient remedy at law: Roberts v. Bank, 19 Pa. 71; Gormley v. Clark, 134 U. S. 338 (10 Sup. Ct. Repr. 554) ; Boyce v. Grundy, 28 U. S. 210 ; Brush Electric Co.’s App., 114 Pa. 574; Harper’s App., 109 Pa. 9; Simes v. Everson, 46 Pa. 304; Abbott v. Reeves, 49 Pa. 494; Bierbower’s App., 107 Pa. 14; Warner v. McMullin, 131 Pa. 370 ; Mortland v. Mortland, 151 Pa. 593; Penna. R. R. Co. v. Bogert, 209 Pa. 589; Steinmeyer v. Siebert, 190 Pa. 471; Palmer v. Graham, 1 Pars. 476; McKay’s Case, 1 Am. Bankcy. Rep. 292.

      JE. 0. Michener, for appellee.
    The complainant has a full and adequate remedy at law by an action in replevin, and the respondents are entitled to have their contention heard at law and their rights passed on by a jury.
    March 27, 1905:
   Opinion by

Mr. Justice Mestrezat,

Francis G. Gallagher, one of the defendants, by written agreement dated July 10, 1902, leased to the Downing Paper Company, a corporation and one of the defendants, a lot of ground in the city of Philadelphia together with the buildings erected thereon and the machinery and fixtures contained therein, being a plant for the manufacture of paper and felt. The lease was for one year from April 1, 1902, with the right of renewal from year to year on the terms therein set forth. The agreement provided that all betterments in the nature of permanent improvements or additions to the machinery which the lessee might thereafter place on the premises should belong to him and that he might, at any time during the continuance of the lease or any renewal thereof, remove them from the premises.

The plaintiffs, by a written agreement dated December 21, 1903, leased to the Downing Paper Company, another defendant in this suit, two 250 horse power boilers, delivered and erected, including all the brickwork above the floor level, at the latter’s power station in Philadelphia, the property leased by Gallagher to the paper company. For the use of the boilers the lessee agreed to pay $1,000 in cash and thereafter $250 per month rental in the form of twenty-five notes, to be dated upon completion of the erection of the boilers, and each note for the said amount to be payable every thirty days. The agreement provided that the lessee company would not sublet, dispose of, or remove from Philadelphia county the boilers without the consent of the lessors; .that it would surrender up said property at the expiration of the lease, and that if it failed to comply with any of the provisions of the lease, the lessors should have the right to declare the lease void and to resume possession of the boilers, and in any proceeding for such purpose, with or without recourse to law, the lessee waived the right to bring any action against the lessors. It was further stipulated that upon the surrender of the boilers, the rent having been fully paid, the lessee had the option of purchasing the property for $7,250, the rent received to be applied upon the purchase price.

The plaintiffs installed the boilers on the Gallagher premises and the paper company paid to them the $1,000 and the two promissory notes maturing March 20 and April 20, 1904, respectively, the rental payable at that time by the terms of the lease, but has not made any other payments on the rent or the notes evidencing the rental.

In May, 1904, the Downing Paper Company was adjudged a bankrupt on its own petition and the defendant Lineaweaver was appointed receiver. He refused to pay the plaintiffs the monthly rental due May 20, 1904, under the lease, and subsequently declined, on request, to inform the plaintiffs whether he would pay the rental or preferred that the plaintiffs should exercise their right under the lease and remove the boilers.

The receiver advertised the equity of the bankrupts in the boilers for sale, whereupon the plaintiffs informed him that they exercised their right to declare the lease void and to take possession of the boilers. Subsequently, the District Court of the United States, on application of the plaintiffs, ordered the receiver to withdraw the bankrupt’s equity in the property from sale and permit the plaintiffs to take possession of the property, and that all right, title and interest of the parties and of the bankrupt’s creditors to the boilers be referred to a referee, upon the plaintiffs giving bond conditioned to abide the orders of the court and agreeing to submit themselves to the jurisdiction of that court, with which conditions the plaintiffs complied.

The plaintiffs, by permission of the receiver, endeavored to take possession of the property, but were prevented by Gallagher, the landlord of the premises, who notified the plaintiffs that he proposed to retain the boilers as part of the real estate and would resist any attempt to remove them. The Fidelity Trust Company, executor, is the mortgagee of the real estate leased to the paper company, and it joined the landlord in preventing the removal of the boilers from the premises.

On July 6, 1904, the District Court of the United States made an order granting the plaintiffs leave to institute in the court of common pleas of Philadelphia county “ any legal or equitable proceeding for the purpose of determining the title to said boilers.” On July 13,1904, Lineaweaver was appointed trustee in bankruptcy of the Downing Paper Company.

The plaintiffs filed this bill against Francis G. Gallagher, S. Arthur Love, Emma R. M. Love, The Fidelity Trust Company, surviving executor of the will of Henry Gibson, deceased, and The Downing Paper Company and James I. Lineaweaver, its trustee in bankruptcy. The bill set forth the above-stated facts and averred that the paper company and its trustee in bankruptcy were, under the lease, trustees of the boilers for the plaintiffs, that the company and its trustee had violated their trust and refused to surrender the boilers, that the plaintiffs believe that the Loves or one of them were the real owners of the premises leased from Gallagher, and that the title was placed in him for the purpose of defrauding the creditors of S. Arthur Love. It prayed that the plaintiffs be declared owners of the boilers, that the defendants be required to deliver up possession of them, and he enjoined from disposing of or injuring them, that Gallagher and the Loves make discovery as to who is the real owner of the demised premises and be restrained from mortgaging or disposing of the real estate, including the boilers as part thereof, that the defendants be restrained from preventing the plaintiffs from removing the boilers and that the paper company and Lineaweaver be directed to specifically perfonn the terms of the lease and surrender the boilers to the plaintiffs.

Gallagher and the Loves demurred and assigned for causes of demurrer that upon the face of the bill the plaintiffs are not entitled to the relief claimed, that the court has no jurisdiction of the bill, and that the plaintiffs have a good and sufficient action at law for the redress of their alleged wrongs.

The learned court below, common pleas No. 5 of Philadelphia county, without filing an opinion, made the following decree: “ October 29, 1904, demurrer sustained.” From this decree the plaintiffs have appealed.

The sole question in this case is, as suggested by the learned counsel for defendants, whether upon the facts averred in the bill a court of equity has jurisdiction.

We think the facts disclosed by the bill warrant á court of equity in taking jurisdiction. The remedy at law would be neither adequate, complete nor convenient.

Of course, assumpsit against the Downing Paper Company would not avail the plaintiffs, nor do we think trover or replevin would be effective in enforcing the plaintiffs’ claim. The boilers were attached to the freehold by the paper company and are, therefore, fixtures and a part of the real estate, unless they retain their character of personalty by virtue of the agreement or lease between the plaintiffs and the paper company. Gallagher, the registered owner of the real estate, is now in possession of it and also of the boilers, and claims the latter as fixtures. It is averred in the bill, however, that S. Arthur Love, or his wife, is the real owner of the premises and that the title was placed in Gallagher for the purpose of defrauding Love’s creditors. It is also alleged that Love was the treasurer of the paper company and conducted all the negotiations with the plaintiffs which terminated in the lease of the boilers to that company, and that the detention of the boilers by Gallagher is in pursuance of an agreement between him and the Loves for the purpose of defrauding the plaintiffs of their property rights in the boilers. It, therefore, may be material to the plaintiffs in asserting their claim to the property to ascertain and have determined whether Gallagher or Love is the real owner of the premises on which the boilers were installed. If Love is the owner his knowledge of and acquiescence in the lease may prevent him from denying the character of the boilers as personal property. It is not alleged that Gallagher had knowledge of the plaintiffs’ lease, or of any of its stipulations, but we need not now determine his rights to the boilers as against the plaintiffs. It is apparent, therefore, that the plaintiffs, in enforcing their claim, need equitable relief to enable them to have determined Love’s ownership of the premises on which the boilers were placed by the paper company.

Replevin would not be a certain remedy against Gallagher for the property in dispute. The paper company, and not he, installed the boilers on the Gallagher premises. It is claimed that the sheriff on a writ of replevin cannot detach the property and deliver it to the plaintiffs, and that he cannot require Gallagher to give a claim property bond. The latter, therefore, could sell the premises, and it has been held that the title to the boilers would pass to an innocent purchaser without notice of the plaintiffs’ claim: Hopewell Mills v. Taunton Savings Bank (Mass.), 15 Am. St. Rep. 235 ; Tibbets v. Horne (N. H.), 23 Am. St. Rep. 31; McFadden v. Allen, 134 N. Y. 489 ; Landigan v. Mayer (Or.), 67 Am. St. Rep. 521. Under these circumstances, the writ, it is true, can be issued against Gallagher : Bower v. Tallman, 5 W. & S. 556, but if the plaintiffs sustain their claim to the property and the issue is found for them, they will secure simply a judgment for the amount of their claim, which can only be enforced by an execution against Gallagher which will not avail them if he is financially irresponsible. A judgment in assumpsit or trover would be equally as effective.

That Gallagher may not encumber or dispose of the real estate and thereby deprive the plaintiffs of their property, the latter are entitled to an injunction restraining him from taking such action until their claim against him for the boilers has been judicially determined. They are entitled to the most effective remedy given by the law to enforce their claim, and hence they have the right to have the property itself, which they allege belongs to them, remain in statu quo, and within the jurisdiction of the court, until their right to it has been determined. They are not compelled to accept the less efficient remedy of the personal security of the individual who is in possession of the property and withholding it from them.

While not sufficient possibly in itself to confer equity jurisdiction, the large number of claimants to this property and the different rights by which they claim it, render the plastic procedure of equity a convenient, as well as an effective, remedy for determining its ownership. The rights and interests of all the parties of, and in, the property in dispute may be adjudicated in this one proceeding, and, in the meantime, the court can protect and preserve the property for the successful claimant.

In this state the action of replevin is not only a proceeding in rem, but also a proceeding against the defendant in the writ personally. Generally speaking, it lies wherever one person claims personal property in the possession of another, provided the claimant has the right of possession ; and there is no doubt that it will lie for property held by the defendant under a contract of bailment. The Act of April 19, 1901, P. L. 88, has made the remedy by replevin more speedy and effective than under the former practice in such actions. The bond required of the plaintiff and the defendant, and the counter-bond by an intervenor under the act of 1901, would afford complete protection to all parties interested in the property in controversy if it was detached from the real estate. But notwithstanding its efficiency in reaching personal property, the action of replevin would fail to meet the requirements of this case. The Downing Paper Company, the lessee, is not in possession of the boilers, nor have they passed to, or are they held by, another as personal property. They are now held by Gallagher, the lessor of the real estate, on which they were placed by the lessee, and lie proposes to hold the boilers as part of the real estate. For the same reason, the mortgagee of the real estate denies the right of the plaintiffs to repossess themselves of the property. The facts of this case, therefore, show that the remedy would be inadequate and ineffective in the enforcement of the plaintiffs’ claim.

We indicate no opinion as to the rights of any of the parties to this controversy, but hold that under the facts averred by the plaintiffs, the demurrer should have been overruled and the bill should have been sustained.

The decree of the court below is reversed and a procedendo is awarded.

      Also reported, 32 N. B. Repr. 21. Reporter.


author: Mr. Justice Brown,

text:
    Stamey, Appellant, v. Barkley.

      Practice, C. P.—Service of process—Proceedings to quiet title—Act of June 10, 1893—Answer—Waiver.

    Where on a petition under the Act of June 10, 1893, P. L. 415, to quiet title to coal land, the rule to show cause is not served on nonresident respondents “at their residence or place of business outside of the county or state where the land lies,” but is served upon them personally, the service is invalid; but if the respondents voluntarily file an answer submitting themselves to the court on the merits of the controversy, they will be deemed to have waived the defect in the service.

      Practice, C. P.—Cloud on title—Framing issue under the Act of June 10, 1893, P. L. 415.
    Where on an issue under the Act of June 10, 1893, P. L. 415, to quiet title to coal land, the respondents file an answer in which they assert the existence of a valid contract entitling them to purchase at a future time the land of which the petitioner was in possession, and they insist upon their right to have such contract continued as a cloud upon his title, the respondents are properly made plaintiffs in the issue, and the burden is upon them to establish the right which they claim.

      Practice, C. P.—Trial—Venire—Act of April 14, 1834, sec. 96, P. L. 333, and April 18, 1876, P. L. 29.
    Where an issue is framed after a venire has issued, the issue may be tried before the jury summoned under the venire, if it appears that the venire was issued more than thirty days before the day set for trial.

      Practice, C. P.—Rules of court—Trial—Suspension of rules—Continuance.

    The court may suspend a rule requiring trial lists to be prepared and publicly posted for at least six weeks before the commencement of the trial term, where it appears in the particular case as to which the rule was suspended that thirty-seven days elapsed between the framing of the issue and the trial, that every opportunity had been given to the parties to prepare for trial, and that the court had offered to give more time if it were needed for preparation.
    Argued Oct. 18, 1904.
    Appeal, No. 18, Oct. T., 1904, by plaintiff, from judgment of O. P. Indiana Co., June T., 1908, No. 140, on verdict for defendant in issue framed between W. H. Stanley, J. C. King and E. D. Carter as plaintiffs and W. F. Barkley as defendant.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Elion, JJ.
    Affirmed.
    Issue to quiet title to coal lands.
    The facts are stated in the opinion of the Supreme Court.

      Errors assigned are set forth in the opinion of the Supreme Court.

      Ered E. Ely, with him Elder Peelor, (?. J. Feit and E. J. Eriseoll.
    The service of the rule to show cause and of the copy of the petition upon the respondents was not good.
    After the venire has been issued and a jury summoned, a cause cannot be put down for trial by that jury.
    It has been the uniform practice under the act of 1893, to make the petitioners plaintiffs in the issue and put the burden of proof upon them : Del. & Hudson Canal Co. v. Genet, 169 Pa. 343 ; Ullom v. Hughes, 204 Pa. 305.

      Ernest Stewart, with him S. J. Telford, for appellee.
    April 10, 1905:
   Opinion by

Mr. Justice Brown,

This proceeding was instituted by the appellee under the Act of June 10, 1893, P. L. 415, for the purpose of quieting title to coal land of which he ivas the legal owner. On the presentation of his petition to the court, setting forth that the appellants disputed and denied his right to the land and asserted a right in themselves to it by virtue of a certain written agreement, a rule was granted to show cause why an issue should “ not be framed by the court to test and determine the respective rights of the petitioner and W. H. Stamey, J. C. King and E. D. Carter, aforesaid, to the coal underlying the land described in the petition, and the right to mine and remove the same.” The appellants were not residents within the jurisdiction of the court, as was averred in the petition, and, in accordance with the second section of the act of 1893, leave was granted to serve the rule on them at their respective residences in Reynoldsville and Erie, this state. The return of the sheriff was that he had served the rule on April 11, 1903, on the respondents “ by producing to each the original, informing each of its contents, and by handing’ to each a true and attested copy thereof, as well as a copy of the petition and article of agreement.” On May 2, 1903, two days before the return day of the rule, an appearance dé bene esse was entered for them, and on the return day a motion was made to set aside the service, for the reason that it had not been made on any one of them at his residence or place of business. On the same day this motion was refused, and, by the first assignment, we are asked to say that this refusal is reversible error appearing in limine.

In the absence of any provision in the act of 1893 for service of a rule beyond the jurisdiction of the court granting it, on persons not resident therein, there could not be such a service. The act provides that when the person or persons denying the right, title or right of possession of the person or persons in possession of the land are not residents within the jurisdiction of the court to which the petition for quieting the title is presented, that court may make an order that the rule to show cause why an issue should not be framed shall be served on the person or persons denying the right of the petitioner “ at their residence or place of business outside of the county or state where the land lies.” The place where such rule is to be served on nonresidents within the court’s jurisdiction is “ at their residence or place of business outside of the county,” and, as the statute so provides, service elsewhere on them outside of the county is not good. In Lehigh Valley Insurance Co. v. Fuller et al., 81 Pa. 398, the process against the insurance company, whose place of business was not in the county in which the same was issued, was served upon an agent of the company, the return being that service was so made upon him. Judgment was taken against the company by default. On the application to open it one of the reasons given was that there had not been proper service upon the company, the act of assembly requiring that service upon its agent in a county in which it did not reside must be at the usual place of business or residence of such agent. In reversing the court below for refusing to open the judgment, it was said by ShabsWOOD, J.: “ Conceding that an attachment execution, with the clause of scire facias to the garnishee embodied in it, is a ‘ summons or other mesne process,’ the legislature has seen fit to provide that the service shall be ‘ at the usual place of business or residence ’ of the agent, and in no other way. A personal service is not sufficient. Why, it is nob our place to inquire. Ita lex scripta est.” The direction of the statute as to service of process must be obeyed, or the court does not acquire jurisdiction over the person named in it: Wright v. Douglass, 3 Barbour, 554. As there is no return that the rule was served in accordance with the order of the court, and as directed by the statute, and it affirmatively appears from the answer of the respondents that it had not been so served, the motion to set the service aside ought to have prevailed; and, but for a reason about to be given, the first assignment of error would be sustained.

On May 4, 1903, immediately after the court refused to set aside the service of the rule, the appellants, without any order directing them to do so, but voluntarily, so far as can be gathered from the record, filed an answer to the appellee’s petition. While it is true that in the concluding paragraph they aver the irregularity of the service and again ask that it be set aside, the answer as a whole is not only a denial of the material averments of the petition, but an assertion that John Mc-Gaughey, as the duly authorized agent of the petitioner, had entered into a valid contract with them for the sale of his coal. By this voluntary answer, going beyond a denial of the court’s jurisdiction over them, they submitted to it the question of the validity of the contract on which they rely as giving them a right to purchase the coal at a future time. They practically asked the court to determine their rights under the agreement, and having so voluntarily submitted that question to it, they submitted themselves to its jurisdiction. This cannot be questioned in the light of any of our cases. In Coleman’s Appeal, 75 Pa. 441, where we held that service of process had been properly set aside after an appearance de bene esse and the filing of an answer, the defendant had been compelled to answer by a rule, and, in answering under such compulsion, had reserved all exceptions to the order and manner of service.

If, upon the hearing of a rule for an issue, it shall appear to the court that the facts set forth in the petition are true, it shall be the duty of the said court “ to frame an issue of such forms as the court shall deem proper between the respective parties, to settle and determine the right and title of the respective parties to said land.” Of this we have said: “ The control of the court over both the form and the substance of the issue is ample, and should be exercised to fit' the requirements of the real controversy between the partiesUllom v. Hughes, 204 Pa. 805.

That the appellants were properly made the plaintiffs we have no doubt. By their answer they boldly asserted the existence of a valid contract entitling them to purchase the appellee’s land at a future time, and insisted upon their right to have it continued.as a cloud upon his title. He was in possession of the land. If they had a right to oust him under the agreement given them by McGaughey the burdeii was on them to affirmatively establish it, and the issue between them and the appellee was properly made up for the determination of the following questions: “ (1) The authority of John Mc-Gaughey to make and sign the name of the defendant to the agreement of February 25,1902, a copy of which is attached to the petition. (2) Is such agreement, if John McGaughey had authority to sign the name of the defendant thereto, now in full force and effect ? (3) If such agreement had the name of the defendant signed thereto by John McGaughey through valid authority, are the plaintiffs entitled to specific performance thereof? (4) Have the plaintiffs now any right, title, interest or legal claim to the coal under the defendant’s land by virtue of the agreement of February 25, 1902, or acts and transactions under it between the plaintiffs and the defendant?” The second and third assignments are dismissed.

The issue was framed September 5, 1903. It was placed on the trial list for the week beginning October 12, 1903. On September 29 the appellants made formal objection to the trial of the cause at the court to be held October 12, assigning as a reason therefor that the venire, issued on August 3, 1903— before the issue was framed—was in violation of the Act of April 14, 1834, P. L. 338. The 96th section of that act provides : “ The Prothonotaries and clerks of the several courts of common pleas, district courts of nisi prius of this Commonwealth shall, as soon as conveniently may be after the list of the causes at issue and for trial at any term of the respective court shall have been settled, and at least thirty days before the beginning thereof, make out and forthwith deliver to the sheriff of the respective county a writ, commanding the said sheriff and the commissioners of the said county to impanel, and the said sheriff to summon a jury, or a jury of special jurors, as the case may be, for the trial of all such issues.” By the later Act of April 18, 1876, P. L. 29, the judges of the several judicial districts of the commonwealth are authorized and empowered to cause the issuance of venires, and the only proviso as to when a venire shall issue is found in the third section, which provides that “ each venire shall issue at least thirty days before the first day on which the jurors to be summoned under it shall be called to attend.” As the venire in this case had been issued on August 3,1903—more than thirty days before October 12—there was no error in overruling the objection to the trial of the case before the jurors in attendance.

On October 12, 1903, when the case was called for trial, an application was made for a continuance because it had not been set down for trial in accordance with the following rule of court: “ At least six weeks before the commencement of each term the prothonotary shall make out the trial list and cause the same to be publicly posted in his office, and printed slips thereof made and furnished to the counsel interested.” The issue was framed September 5—-thirty-seven days before October 12—and from the opinion refusing the continuance it appears that every opportunity had been given the plaintiffs to prepare for trial. The court went further and stated that if any good reason was given, why more time was needed for preparation, it would be considered and further time granted. The case and others like it had been before the court in many phases, and the learned trial judge says it was the intention to have a list specially made out for an early disposition of them, all of which the plaintiffs knew. That a court can suspend its rules is as certain as that it'can make or revoke them, if such suspension results in no material injury to the one complaining of it. If one having reason to rely upon a rule acts accordingly, and is then manifestly injured by the court’s arbitrary disregard of it, the wrong done will be corrected here. An illustration of this is Schrimpton v. Bertolet, 155 Pa. 638. There, counsel for both parties had agreed to continue the case under a rule of court permitting continuance once by consent. When it was called the court disregarded this rule and forced the defendant to trial. He had come into court without any witnesses, having relied upon the rule, under which his counsel had made an agreement with counsel for the plaintiff to continue. As he was manifestly wronged, the judgment was reversed. All of our own cases agree that, in the ■ application of its own rules, a court can be reversed only for manifest and material error: Bair v. Bubartt, 139 Pa. 96. In the present case it is most manifest that no possible wrong was done to the plaintiffs by the court’s failure to continue because the case had not been on a trial list made out by the prothonotary at least six weeks before the commencement of the term. On the contrary, for good reasons given by the court in the opinion refusing the continuance, it was properly taken out of the rule, with due regard for the rights of the plaintiffs, who were notified that, for any good cause shown by them, a continuance would be granted. They failed to show any, and, having had thirty-seven days within which to prepare for trial, the court committed no error in refusing to give them further time.

After counsel for the appellants had notified the court that they would not appear at the trial, tbe trial judge properly directed it to proceed without them. This disposes of all the questions raised by the assignments, and the judgment is affirmed.


author: Mr. Justice Mestrezat, Mb. Justice Bbown,

text:
    Youghiogheny River Coal Company, Appellant, v. Allegheny National Bank.

      Mines and mining—Coal—Surface support—Skillful and careful mining—1 Agreement to indemnify—Contract.

    If the owner of the whole fee in land conveys the coal in the land in general terms, retaining the residue of the tract, the purchaser acquires the coal with the right to mine and remove it, provided he does so without injury to the superincumbent estate. His estate in the coal, like that of the owner of the surface, is governed by the maxim sic utere tuo ut alienum non tedas. The owner of the surface is entitled to absolute support of his land, not as an easement or right depending on a supposed grant, but as a proprietary right at common law. This right which the servient estate owes to the dominant estate does not depend upon whether the mining operations are conducted skillfully or negligently and carelessly.
    Where owners of coal under land, the surface of which is owned by another, convey all of the coal to a third person, and give the grantee an obligation conditioned that they will “well and truly protect and indemnify the grantee from any liability for any damage which may result to the surface of the tracts of land overlying the coal land purchased .... by reason of the skillful and careful mining and taking away the said coal,” the words “skillful and careful mining,” are to be construed as relating to the manner of working the coal, and do not impose upon the grantee in operating the coal the duty of leaving proper and sufficient supports for the surface. If, therefore, the grantee exercises care and skill in his mining operation, he may mine and remove all the coal, and the grantors must indemnify him against 'any damage resulting from injury to the surface which he may be compelled to pay the surface owner.
    Dean and Brown, JJ., dissent.
    Argued Nov. 1, 1904.
    Appeal, No. 108, Oct. T., 1904, by-plaintiff, from order of C. P. No. 2, Allegheny Co., Jan. T., 1903, No. 997, sustaining defendant’s demurrer in case of The Youghiogheny River Coal Co. v. The Allegheny National Bank et al.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Assumpsit on a contract of indemnity.
    Demurrer to statement.
    The pleadings are fully set forth in the opinion of the Supreme Court.
    The court in an opinion by Shaeer, J., sustained the demurrer.

      Error assigned was in sustaining the demurrer.

      John O. Petty, for appellant.
    The words “ skillful and careful mining ” in their ordinary and primary sense mean the taking of minerals according to skillful and approved methods.
    It has never been decided in this state or elsewhere that mining without surface support is not skillful and careful mining: Lewis v. Fothergill, L. R. 5 Ch. App. 103; Buchanan v. Andrew, L. R. 2 Scotch & Div. App. Cases, 296.
    Support is parcel of the reserved estate; it is of common right, and hence must pass, if at all, by express grant, and is not to be defeated by mere implication arising from language that does not import such an effect: Coleman v. Chadwick, 80 Pa. 81; Jones v. Wagner, 66 Pa. 429; Pringle v. Vesta Coal Co., 172 Pa. 438.
    The right of the surface owner is declared to be, right to absolute support, and that where such right exists, it is of no consequence with what degree of skill and prudence the mine owner conducts his operations: Hill v. Pardee, 143 Pa. 98; Carlin v. Chappel, 101 Pa. 348; Matulys v. Coal & Iron Co., 201 Pa. 70.
    <7. (7. Dickey, of Shiras Dickey, with him John D. Brown, for appellees.
    The question now before the court was decided in favor of the defendants in Youghiogheny River Coal Co. v. Hopkins, 198 Pa. 343.
    That the clause in question is referable to the support of the surface is shown by the decisions in Noonan v. Pardee, 200 Pa. 484 and Pantall v. Rochester and Pittsburg Coal and Iron Co., 204 Pa. 158.
    A suit on a bond conditioned to deliver goods, without a contract to that effect, must be in debt and not in covenant: Powell v. Clark, 2 N. J. L. 391; Huddle v. Worthington, 1 Ohio, 424.

      John 0. Petty, for appellant, in reply.
    The omission of a penalty in the bond does not affect its validity. The only effect is to make the validity commensurate with the condition: Dodge v. St. John, 96 N. Y. 260; Coles v. Hulme, 8 B. & C. 568; Waynick v. Richmond, 11 Kansas, 488; Browning v. Beston, Plowden, 131.
    April 10, 1905:
   Opinion by

Mr. Justice Mestrezat,

The defendants were the owners of certain coal lands in Westmoreland county, conveyed to their predecessor in title in 1862, by the following grant: “ All the main working vein of coal underlying the farm on which party of the first part resides, situate in Sewieldey township, Westmoreland county, Pennsylvania, etc. . . . With the right to take and carry away said coal with the- privilege to air and drain his openings while taking out and for any other purpose that he, or his assigns, may need said openings for.” After the conveyance of the coal, the owner of the land, by deed dated March 24, 1871, conveyed the tract to one, R. G. Greenawalt, with the following reservation : “ The said parties of the first part reserve all of the now worked six-foot vein of stone coal. Also the right and privilege for themselves, their heirs and assigns, of digging, mining and carrying away said stone coal.” In 1892, the defendants sold and conveyed said coal to the Youghiogheny River Coal Company, the plaintiff, and gave to the company an obligation, dated February 29, 1892, conditioned, inter alia, that they would “ well and truly protect and indemnify said Youghiogheny River Coal Company from any liability for any damage which may result to the surface of the tracts of land overlying the coal land purchased by said coal company from said obligors and others, or to improvements thereon, by reason of the skillful and careful mining and taking away of the said coal.”

Soon after the purchase of the coal land, the Youghiogheny River Coal Company took possession of it and began mining operations. Subsequently R. G. Greenawalt, the owner of the tract of land, except the coal conveyed to the coal company, brought an action against the coal company for damages, alleging that it had so carelessly, negligently and unskillfully conducted its mining operations as to cause the surface of his land to break and subside, resulting in injury to the land, the clay and upper coal vein therein and improvements thereon. The case was tried and resulted in a verdict and judgment in favor of Greenawalt. Thereupon the present action was brought by the Youghiogheny River Coal Company on the obligation of the defendants, referred to above, to recover the damages and expenses which the coal company was compelled to pay by reason of the suit brought against it by Greenawalt. The statement avers that the “ Youghiogheny River Coal Company entered into possession of the same (coal) and proceeded in a careful and skillful manner, according to the usual and customary methods of mining practiced in the bituminous coal district, to mine and remove said coal in the manner contemplated by said agreement, which mining and removal caused a subsidence of certain surface lands, owned by one Richard Greenawalt, overlying a part of the same, and by reason of such subsidence, certain springs on the surface land of said Greenawalt were injured, an upper vein of coal damaged, and certain buildings thereon cracked; ” that the verdict against it in favor of Greenawalt was “ recovered upon the allegation and proof that the Youghiogheny River Coal Company had not supported the surface lands of the said Greenawalt in its mining operations.” The defendants demurred to the statement on the grounds that the declaration admits the lack of due care and skill in the mining performed by plaintiff and that “ the admission in said declaration that there had been a recovery against the plaintiff for failing to afford support to the overlying surface is an admission that the plaintiff in this action had not used all ordinary precautions in giving proper support to said surface.” The court below sustained the demurrer and the plaintiff has appealed.

In support of its appeal, the plaintiff company contends that the words “ skillful and careful mining and taking away of the said coal ” in the obligation or agreement on which this suit was brought, refer to the method and manner of working the coal and that failure to leave sufficient coal in place to support the overlying surface is not unskillful and careless mining. The defendants’ position is that “ skillful and careful mining and taking away of the said coal ” as used in the obligation of the defendants, is referable to the support of the surface and that the proper support of the surface is a part of the skillful and careful mining and taking away of said coal.” It is, therefore, claimed by the defendants that the averment in the statement that the plaintiff company had failed to support the surface is an admission of lack of care and skill in mining and removing the coal under the Greenawalt surface.

There may be a horizontal division of land resulting in the ownership of the surface by one person and the ownership of the subjacent vein or seam of coal by another person. When there has been a severance of ownership of the surface and the coal, the owners of the respective estates hold them as estates in land and, of course, the title and rights of each depend upon his conveyance. If the owner of the whole fee conveys the coal in the land in general terms, as in this case, retaining the residue of the tract, the purchaser acquires the coal with the right to mine and remove it, provided he does so without injury to the superincumbent estate. His estate in the coal, like that of the owner of the surface, is governed by the maxim sic utere tuo ut alienum non Ledas. The owner of the surface is entitled to absolute support of his land, not as an easement or right depending on a supposed grant, but as a proprietary right at common law: Carlin v. Chappel, 101 Pa. 348; 2 Snyder on Mines, sec. 1020. Support for the superincumbent estate is of natural right and is part of the estate reserved to the owner of the surface : Coleman v. Chadwick, 80 Pa. 81. And this right which the servient estate owes to the dominant estate does not depend upon whether the mining operations are conducted skillfully or negligently and carelessly : Pringle v. Vesta Coal Co., 172 Pa. 438 ; Noonan v. Pardee, 200 Pa. 474. In the Pringle case it is said: “ If the owner of the coal undertakes to mine and remove it,—as he has an undoubted right to do,'—and damage results to the surface, either (a) from negligence in conducting his mining operations, or (5), from failure to properly and sufficiently support the surface, or (e), from both these causes combined, the surface owner is entitled to recover compensation for such injury as he may show he has sustained.” And this is the law of England whose decisions we have followed in holding the surface owner entitled to absolute support for his estate: Harris v. Ryding, 5 M. & W. 60; Humphries v. Brogden, 1 Eng. Law & Eq. 241. In this last case, Lord Campbell, C. J., delivering the opinion of the Queen’s bench, remarks : “It seems to have been the unanimous opinion of the court (in Harris v. Ryding), that there existed the natural easement of support for the upper soil from the soil beneath; and that the entire removal of the inferior strata, however skillfully done, would be actionable if productive of damage by withdrawing that degree of support to which the owner of the surface was entitled, the duty of the owner of the servient tenement forbidding him to do any act whereby the enjoyment of the easement could be disturbed.”

Under the titles of the respective parties, it is clear that Greenawalt was entitled to absolute support for the surface overlying the plaintiff; ’s coal and that if the company deprived him of it in mining the coal, it was liable for the consequent injury' to him regardless of whether the mining operations were conducted skillfully or negligently and carelessly. His light to actual support for the surface of his land was a natural and property right and did not depend upon the manner in which' the subjacent coal was removed.

The defendants being required “to leave every pound of coal untouched under the land ” if necessary to support the surface, Noonan v. Pardee, 200 Pa. 474, what was the purpose and intention of the parties in giving and receiving the obligation in question ? We must assume what the experience of everybody teaches that the parties were prompted by the motive of self-interest in this transaction. The price which the defendants would demand and the plaintiff would agree to pay would necessarily depend upon the amount of coal which could be mined and removed from the land. When, therefore, the defendants agreed to sell and convey the coal, the basis upon which they fixed the selling price was the quantum of workable coal. This in turn would depend upon the depth of the coal under the surface and the character of the strata of stone and earth overlying it. It was under these circumstances that the defendants executed and delivered to the plaintiff the obligation in question at or about the time of the delivery of the deeds. The defendants believing and relying upon the sufficiency of the superincumbent strata to afford absolute support to the surface were willing to assume responsibility for the breakage of the surface in mining and removing all the coal. This made certain the amount of coal accessible for mining, and necessarily greatly enhanced the value of the tract to the purchaser. By their deeds the defendants conveyed to the plaintiff company the coal, but under the servitude imposed on their title by the laws of the state the purchaser was restricted as to the quantity he could mine and remove to an uncertain amount, or, possibly, to no part of the entire body of the mineral. To remove this uncertainty and contingency and to secure to the purchaser “ all the main working vein of coal underlying the farm,” the defendants executed and delivered the obligation in question and thereby obligated themselves to protect and indemnify the plaintiff company “ from any liability for any damage which may result to the surface of the tracts of land overlying the coal land purchased by the said coal company from said obligors and others, or to improvements thereon, by reason of the skillful and careful mining and taking away of the said coal.” The purpose and effect of this obligation is, therefore, most obvious and manifest. The title of the coal company, acquired by its deeds, gave it the entire body of coal subject, however, to the absolute support of the surface or, in the language of the obligation in question, to “ any liability for any damage which may result to the surface of the tracts of land overlying the coal land ” caused by mining and removing the coal. This obligation indemnifies the coal company against this liability provided it exercises skill and care in mining and taking away the coal. Observing this single provision of the obligation, the defendants’ protection permitted the coal company to remove all the coal without leaving any supports for the surface. It necessarily follows that the skill and care required to be exercised by the plaintiff in operating the coal referred to the manner of working the vein conveyed to the plaintiff company. Any other construction would produce an absurdity and render the obligation nugatory and impotent to carry out the manifest purpose for which it was executed and delivered. The only'protection the coal company needed to enable it to mine all the coal was indemnity against injury resulting to the surface in removing the coal required for supports. If, therefore, “ skillful and careful mining ” in the defendants’ obligation requires the coal company to leave in place coal sufficient to support the surface, the instrument affords the company no protection whatever against the only liability it could incur, which is to the surface owner, by removing the supports and thereby breaking the surface. If, on the other hand, we give these words their usual and primary signification, keeping in view the manifest purpose to be attained, the defendants’ obligation will supplement their deeds and place in the grantee the entire body of coal freed and discharged from the only obstacle or impediment in mining and removing it, which is the duty of absolute support owed to the surface owner.

If we omit from the condition of the obligation the words “ skillful and careful,” it will then require the defendants to “protect and indemnify said Youghiogheny River Coal Company from any liability for any damage which may result to the surface of the tracts of land overlying the coal land purchased by said coal company from said obligors and others, or to improvements thereon, by reason of the .... mining and taking away of the said coal.” Such an obligation would unquestionably protect the obligee from liability in removing all of the coal. That is manifest and must be conceded. If we insert the omitted words in the condition, how does it affect the obligors’ liability ? This, we think, is apparent. It doés not prevent the obligee company from removing all the coal, but simply imposes upon it the duty of care and skill in the mining operations. By virtue of its deeds from the defendants, all the coal belongs to the plaintiff company, as is conceded, and this obligation indemnifies the company as against the surface owner in removing all of it. If, however, by the careless use of explosives or the negligent or unskillful use of any other means in mining the coal, the company’s employees, regardless of the quantity of coal they may remove or leave in place, should break the surfa.ce, the defendants’ obligation will afford the obligee no protection and the company would be compelled to stand the loss. Hence, it is manifest that the words “skillful and careful ” in the obligation refer to the manner or method of working the stratum or vein of coal, and not to the quantum, of coal which the owner may remove or leave in place to support the surface.

Our own cases and also the English decisions recognize a distinction between a failure to support the surface and negligence in conducting the mining operations. In Horner v. Watson, 79 Pa. 242, an action for not supporting the surface whereby the plaintiff’s mines adjoining those of the defendants were flooded, the ruling of the trial court was affirmed by this court in refusing to charge that the defendants were not liable if the jury found the injuries were not occasioned by any wanton or willful acts and that the defendants had conducted their mining operations according to the approved, established and customary course and practice of mining in the region and without any negligence in the operation of mining. In Carlin v. Chappell, 101 Pa. 348, the late Chief Justice Green, delivering the opinion, referred to this ruling in the Horner case and recognized the same distinction by saying that it was there held that “ the defendants would be responsible .... without any reference to actual negligence or want of skill in the miner.” He also says that “ it will here be seen (referring to a quotation from a textbook) that the right of the surface owner is declared to be a right to absolute support, and that when such right exists it is of no consequence with what degree of skill and prudence the mine owner conducts his operations.” And in Pringle v. Vesta Coal Co., 172 Pa. 488, this court recognizes the distinction and says that the owner of the coal is responsible for failing to support the surface whether the injury results “ from negligence in conducting his mining operations or from failure to properly and sufficiently support the surface.” The English cases cited above also recognize the distinction between negligent and careless mining operations and failure to leave sufficient coal in place to support the overlying surface. The declaration in those cases laid the cause of action as having been “ wrongfully, carelessly, negligently and improperly, and without leaving any proper or sufficient pillars or supports in that behalf.” Lord Campbell in Humphries v. Brogden, in commenting on Harris v. Ryding, says, in addition to the excerpt from his opinion quoted above: “ The Barons, in the very comprehensive and masterly judgments which they delivered seriatim, seem all to .have thought that the reservation of the minerals would not have justified the defendant in depriving the surface of a complete support, however carefully he might have proceeded in removing them.”

We are of opinion that the words “skillful and careful mining,” used in the defendants’ obligation of February 29, 1892, relate to the manner of working the coal, and do not impose upon the plaintiff company in operating the coal the duty of leaving proper and sufficient supports for the surface. If, therefore, the plaintiff exercise care and skill in its mining operations it may mine and remove all the coal, and the defendants must indemnify the company against any damage resulting from injury to the surface which it may be compelled to pay the surface owner.

In explanation of the apparent delay in handing down this opinion the writer may be permitted to say that the case has been but recently assigned to him.

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

Mb. Justice Bbown,

dissenting.

The judgment below in favor of the defendants was on their demurrer to the plaintiff’s statement. When it was negotiating with the appellees and two others, now deceased, for the purchase of certain coal lands, the ownership of the surface was in third parties, and it “ declined to purchase unless it, the said Youghiogheny River Coal Company, was properly protected and indemnified from any liability for damage which-might result to the surface lands overlying said tract of coal, or to the improvements thereon, in the skillful and careful mining and taking away of said coal without surface support.” Immediately following this averment is one that the appellees, “to induce the said Youghiogheny River Coal Company to purchase said coal Lands, stipulated with it that they would make and execute an agreement in writing to well and truly protect and indemnify it, the said Youghiogheny River Coal Company, from any liability or damage which might result to the surface land overlying the said tract of coal or to the improvements thereon by reason of the skillful and careful mining and taking away of said coal.”

The agreement in writing subsequently given by the vendors was that they would “ well and truly protect and indemnify said Youghiogheny River Coal Company from any liability for any damage which may result to the surface of the tracts of land overlying the coal land purchased by said coal company from said obligors and others, or to improvements thereon, by reason of the skillful and careful mining and taking away of the said coal.” It will at once be observed that though the averment of the appellant is that it had insisted upon indemnity against liability for damage done to the surface in not giving the same support, the admission is that the indemnity given and received by it was from liability for damages to the surface owner simply from the skillful and careful miningand taking away of coal. There is no agreement to indemnify it if the surface should subside in consequence of the vendee’s failure to furnish sufficient support. Though such an indemnity had been asked for, it was not given, and it is not reasonable to suppose it would have been given by the appellees if the appellant had persisted in making it a condition of the sale.

In the suit brought against it by R. G. Greenawalt, the surface owner, there was a recovery against the appellant, and the averment of its cause of action against the appellees is that he had recovered upon his allegation and proof that it had not supported his surface lands in its mining operations. For what he recovered from it, it now seeks to recover from the appellees on what it terms the indemnity agreement.

The situation to my mind is entirely free from difficulty. Though appellant’s averment is that it had mined “ in a careful and skillful manner,” its distinct admission is that the injuries sustained by Greenawalt were due entirely to its failure to support his surface. If, as the surface or upper owner, he had sustained injury in connection with what may have been the appellant’s careful and skillful mining—if, by way of illustration, an upper vein of coal belonging to him had been damaged in such mining—the right of the appellant to recover from the appellees what it had been compelled to pay him could not be questioned; but when the injuries sustained were due solely to its failure to observe the absolute duty owed by it to the surface owner, and from the consequences of a disregard of which it had not been indemnified by the appellees, though they had been asked for such indemnity, it is equally clear that there is no liability from them to it. Its skillful mining is not involved in its claim as set forth in the statement of its cause of action.

The owner of a mineral estate, in the absence of any agreement to the contrary between him and the upper owner, owes a servitude to the superincumbent estate of sufficient support; and a failure to sufficiently support that estate is negligence : Jones v. Wagner, 66 Pa. 429. The duty of furnishing sufficient support is an absolute one, and the rule enforcing it is not only rigid, but has long been well known through many of our cases, one of the latest being Noonan v. Pardee, 200 Pa. 474, in which our Brother Dean not only clearly, but forcefully, says: “ Where there has been a horizontal division of the land, the owner of the subjacent estate, coal or other mineral, owes to the superincumbent owner, a right of support. This is an absolute right arising out of the ownership of the surface. Good or bad mining in no way affects the responsibility; what the surface owner has a right to demand is, sufficient support, even, if to that end, it be necessary to leave every pound of coal untouched under his land : Berwind v. Barnes, 18 W. N. C. 541; also the English case, Harris v. Ryding, 5 M. & W. 60, in which Baron Pabke uses this language : ‘ I do not mean to say that all the coal does not belong to the defendants, but they cannot get it without leaving sufficient support.’ We have followed rigidly this rule, as thus tersely suggested, in all our decisions on the subject, and they have been many. Of course, defendant had aright to all the coal under this lot, but, he had no right to take any of it, if thereby, necessarily, the surface caved in. The measure of his enjoyment of his right must be determined by the measure of his absolute duty to the owner of the surface. So, there is nothing gained by adducing evidence of good or bad mining, or by a discussion of that subject.”

Sufficient support was not given to Greenawalt by the appellant, and as the terms of the agreement to indemnify do not extend to its admitted negligence, no right of action to recover from the appellees is disclosed in its statement, and the judgment on the demurrer ought to be affirmed. I am utterly at a loss to understand how any other conclusion can follow an examination of the pleadings.

Dean, J., joins in this dissent.


author: Mb. Justice Elkin,

text:
    Hibberd, Appellant, v. Hubbard
    (No. 1).

      Pleadings—Evidence—Parties—Allegata—Probata.

    Where a plaintiff declares against four persons on a joint liability, but at the trial fails to produce testimony to show a liability on the part of one of them, his case fails.

      Executors and administrators—Wrongful payments—Evidence.

    Where the administrator of a deceased partner, with the knowledge of all the other surviving partners, pays to one of them, on his withdrawal from the firm, moneys out of the funds in his hands as administrator in settlement of the withdrawing partner’s share in the business, the withdrawing partner, the other partners and the administrator are liable to the estate of the deceased partner for the repayment of the funds of the estate misapplied by the administrator.
    Argued Jan. 3, 1905.
    Appeal, No. 14, Jan. T., 1904, by piaintiff, from order of C. P. No. 3, Phila. Co., Deo. T., 1901, No. 399, dismissing exceptions to report of referee in case of Dilworth P. Hibberd, Administrator d. b. n. c. t. a. of George K. Hubbard, deceased, v. George L. Hubbard, Elon H. Guyn, R. Alfred Zimmerman and George A. Cotton, Individually, and as surviving partners and successors to George K. Hubbard, George L. Hubbard, Elon H. Guyn, R. Alfred Zimmerman and George A. Cotton, copartners, trading as George K. Hubbard & Company.
    Before Mitchell, C. J., Dean, Fell, Bbown, Mestbezat, Potteb and Elkin, JJ.
    Reversed.
    Exceptions to report of referee.
    From the record it appeared that George K. Hubbard, George L. Hubbard, Elon H. Guyn, R. Alfred Zimmerman and George A. Cotton, special partner, on December 1, 1892, formed a copartnership to carry on a wholesale grocery busi-ness in Philadelphia to expire on November 31,1895. This business was carried on under the agreement until February 27,1895, upon which day George K. Hubbard died. The remaining partners and the administrator of the estate of George K. Hubbard, with the expressed consent of all the rest of kin of the decedent, carried on the business as theretofore until November 30, 1895.
    George A. Cotton and the administrator then withdrew and George L. Hubbard, Elon H. Guyn, and R. Alfred Zimmerman then formed a new copartnership and took over the interest of the estate in the former business.
    George A. Cotton called for his share of the assets ; George L. Hubbard as administrator paid to Cotton $11,300, and the other members paid $13,700 to him; making the total $25,000.
    In 1896, Hubbard, administrator of Hubbard, deceased, had an appraisement made by said George A. Cotton and George W. Souder, of the undivided interest of George K. Hubbard in the firm of George K. Hubbard & Company; the appraisers valued the said interest at $33,797.20, and the administrator charged himself in his account with the same ; and the adjudication thereof by the orphans’ court of Philadelphia county was confirmed absolutely during the year 1896.
    In September, 1903, the orphans’ court removed George L. Hubbard as administrator, and appointed D. P. Hibberd to be administrator de bonis non.
    In 1901, George L. Hubbard, administrator, began an action against the defendants. No statement of claim was filed until after the substitution of the present plaintiff for Hubbard. The statement of claim contained two counts :
    1. To recover the sum of $33,797.20, with interest, for the interest of decedent’s estate in the former firm of George K. Hubbard & Company, which said interest had been taken over, used and appropriated by the said defendants in continuing the said business after the death of George K. Hubbard, with the understanding that they should account to and pay said estate the value of the interest so taken when ascertained by an appraisement.
    2. To recover the sum of $11,300, with interest, paid by the administrator to Cotton in settlement for special contribution, upon the dissolution of the copartnership.
    After the cause was at issue, it was referred, by agreement of the parties, to George Tucker Bispham, Esq. The referee found in favor of the defendants upon the first count; and for the plaintiff upon the second count. A supplemental report was made in which the finding for the plaintiff upon the second count was reduced by $3,556.94, to the sum of $11,207.90. Other facts appear by opinion of the Supreme Court.
    McMichael, J., dismissed exceptions to the referee’s report.

      Errors assigned were in dismissing the exceptions.

      J. Barton Bettew, for appellant.
    Surviving partners are liable if they continue to trade with firm assets and fail to account to representatives of a deceased partner: Brown’s Appeal, 89 Pa. 139.
    An administrator can give no legal authority to surviving partners to trade with his decedent’s assets: Grim’s Appeal, 105 Pa. 375.

      John Q-. Johnson, with him Samuel P. Tall and Richard Q. Pale, for appellee.
    April 10, 1905 :
   Opinion by

Mb. Justice Elkin,

Two questions are raised by this appeal. The plaintiff in one couut of his statement of claim seeks to recover the sum of #33,797.02, with interest, less a credit of #8,728. 65, paid on account, against four defendants jointly. At the trial he failed to produce testimony to show a liability on the part of one of the defendants. The learned referee so found as a fact and as a conclusion of law. The appellant declared on, but failed to prove a joint liability. The probata did not sustain the allegata. This is the end of one branch of the case. All assignments of error relating thereto are overruled.

The second count of the declaration raises a different question. It is herein sought to recover #11,300, with interest, from George L. Hubbard, Elon H. Guyn, R. Alfred Zimmerman and George A. Cotton, as individuals. This action is predicated on the allegation that George L. Hubbard, as administrator of George IL Hubbard, deceased, had wrongfully paid to the said George A. Cotton, at the instance and with the consent of the other defendants, the amount claimed out of funds in his hands as administrator. The estate of George K. Hubbard, deceased, was not indebted to Cotton. The surviving partners of the firm of George K. Hubbard & Company may have been so indebted. It is contended that the administrator of the decedent had no right to appropriate the trust funds to the payment of firm debts. The learned referee has so found in the following language: “ The payments made by the administrator to the defendant, Cotton, in December, 1895, and April, 1896, were wrongful, and constituted a diversion of trust funds. When these payments were received by the defendant, Cotton, he knew that they were paid out of trust funds and he thereby made himself individually responsible for the return of these amounts to the personal representatives of George K. Hubbard.” The learned referee further discusses the question in his opinion, wherein it is said : “ It is plain that the payments of December 26, 1895 and April 22, 1896, were made in breach of trust. They were made by checks drawn on the administrator’s account. They were not made in discharge of any obligation for which the estate was answerable. They were misappropriations of trust funds. The defendant, Cotton, to whom these payments were made, was informed by the very transactions themselves that the administrator had no right to make them. There is no doubt, therefore, that both George L. Hubbard and the defendant, Cotton, would be answerable for these amounts.”

If the case had ended here it would have been properly decided. Exceptions were filed to the original report of the referee and argued before him. He then filed a supplemental report in which he modified his original findings, and by so doing has raised the only meritorious question for the consideration of this court. The modification made in the supplemental report can best be stated in the language of the referee: “ There is one qualification to be made. At the time that the December payment was made the fund on which the check was drawn was composed in part of George L. Hubbard’s interest in the money paid by the Order of Sparta, which interest was one third of $2,500, or $833.33, and when the payment in April, 1896, was made the fund on which the check was drawn was composed in part of George L. Hubbard’s interest in the money paid by the Massachusetts company, $2,723.61. So far as these two sums, therefore, are concerned, to wit: $833.33 and $2,723,61, George L. Hubbard had a right to do as he pleased with them. Any finding, therefore, against the defendants based upon this transaction must be subject to the deduction of the total of these two sums, namely $3,556.94.”

We do not agree with the referee in this respect. All of the testimony had been taken, the facts found, and conclusions of law stated, when the first report was made. There was no new or additional testimony before the referee when the reduction of the award was made in his supplemental report. We must, therefore, consider the facts as shown by the evidence at the time of the first report. In order to intelligently understand the matter in controversy it is necessary to briefly state some of the material facts.

At the time of the death of the decedent his estate consisted very largely of his interest in the firm of George K. Hubbard & Company, which said interest was appraised at $33,797.02, the total inventory filed being $47,062.03. He also had three policies of life insurance in force at the time of his decease, one in the National Life of Vermont for $10,000, payable to his estate; one in the Bay State Beneficial Association of Massachusetts in the sum of $10,000, payable to his three children, and the remaining policy being in the Order of Sparta in the sum of $2,500, in which the children were named as beneficiaries. The exact date when the National Life of Vermont paid the amount of its policy to the administrator is not definitely fixed. The evidence shows that the Order of Sparta, on November 18, 1895, paid $2,500 to George K. Hubbard, who represented the beneficiaries. It also appears that the Bay State Beneficial Association paid to George K. Hubbard, as representative of the beneficiaries, on April 9,1896, $8,170.84, being the net proceeds of that policy. On December 26, 1895, the administrator paid Cotton by his check on the trust fund $8,500. It is clear at that time the administrator had sufficient trust funds in his bank account to make this payment. Cotton himself testified that this payment was made out of trust funds and indicated from whence the trust funds had been derived. In reference to this matter he states: “ They paid me I think some time the latter part of December, 1895, $8,500, and that came from a policy that was payable to the estate, if I remember rightly.” The only policj^ payable to the estate was the one in the National Life of Vermont, and there can be no doubt that this was the fund out of which he was paid said amount. We must conclude, therefore, that the first payment to Cotton was made entirely out of trust funds. The check itself was drawn on the administrator’s account. There is no evidence in the case sufficient to negative the necessary and logical conclusion based upon these facts. It is clear, therefore, that the referee’s finding in his original report that the first payment to Cotton was made out of trust funds is correct.

How about the second payment of $2,800 on April 22, 1896 ? The testimony shows that the administrator did have or should have had sufficient trust moneys in his bank account at that time to make this entire payment. It is true that in addition to the trust funds he deposited in his account the moneys received from the Order of Sparta and the Bay State Beneficial Association. Just what he did with these funds is uncertain. •His testimony is unsatisfactory as well as contradictory. At one time he says these moneys were loaned to the new firm; at another they were paid to Cotton; and at still another they were used in reimbursing the estate. Such testimony is without value to the court in arriving at a proper decision of the case. It is in evidence, however, that in a proceeding to distribute the funds in the assigned estate to George K. Hubbard & Company, the two sisters presented claims for their interest in these moneys derived from the Order of Sparta and the Bay State Beneficial Association. In that proceeding George L. Hubbard, Elon H. Guyn and the two sisters testified that their interest in the funds derived from these beneficial societies had been loaned to the firm. Their claims were allowed and a dividend on account thereof was awarded. These facts were in evidence before the referee. We must therefore conclude that the interests of the two sisters in these funds were loaned to- the new firm, and not to Cotton. It is not clear what was done with the one third interest of George L. Hubbard in these funds. His one third interest may have been loaned to the new firm or may have been used by himself. His testimony is so “tangled,” as he himself testified, that it is without value in the determination of the question. In our view of the case what disposition he made of his interest in these funds is not material. At the time he made the second payment to Cotton he had sufficient trust funds in his hands to pay the same. He made the payment with his check as administrator on the trust funds. The presumption is that the payment was made out of trust funds, and we discover nothing in the evidence to rebut this presumption. To our minds the conclusion is irresistible that the second payment to Cotton was also made out of trust funds. The learned referee erred in reducing the amount of his award in the supplemental report, and the court below erred in affirming the same and entering judgment for the amount so awarded.

The judgment is reversed, and it is directed that judgment be entered for the plaintiff in the court of common pleas for the amount awarded in the original report of the referee.


text:
    Hibberd v. Hubbard
    (No. 2).
    Argued Jan. 3, 1905.
    Appeal, No. 15, Jan. T., 1904, by George A. Cotton, from order of C. P. No. 3, Phila. Co., Dec. T., 1901, No. 399, dismissing exceptions to referee’s report in case of Dilwortb P. Hibberd, administrator d. b. n. c. t. a. of George K. Hubbard, deceased, v. George L. Hubbard et al.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestkezat, Potter and Elkin.
    Affirmed.
    April 10, 1905 :
   Opinion by

Mb. Justice Elkin,

All of tlie questions involved in this case have been considered in disposing of the appeal at No. 14, January Term, 1904. We have carefully examined the argument of the learned counsel for appellant, but have not been convinced that there was error in the-conclusions reached in that case. The findings of fact and of law by the referee and affirmed by the court below, except as modified in former appeal, are justified under the evidence.

The appeal is, therefore, dismissed.