text:
    Millcreek Township, Appellant, v. Erie Rapid Transit Street Railway Company.

      Street railways—Rate of fare—Municipal consent—Abutting landowners.

    Where the supervisors of a township grant to a street railway company the right to lay its tracks on a public road, but stipulate as a condition of the grant that the company shall not charge a fare in excess of an amount stated, and the company after the construction of its road charges a fare in excess of the amount stipulated, owners of property abutting on the road, who have no contract with the railway company as to the rate of fare, cannot join with the township authorities in a bill in equity to restrain the company from collecting a greater rate of fare than that stipulated in the contract with the township. In such a case the individual owners have no interest different from that of the general public.

      Street railways—Franchises—Municipal consent—Forfeiture.

    Where the grant in a franchise by a township to a street railway company to occupy a public road provides that if the railway is mot built within a time specified “then this franchise and all the rights thereunder to be null and void, and of no effect,” no action on the part of the township to complete the forfeiture is required if the railway is not built within the time designated.
    Argued April 26, 1904.
    Appeal, No. 99, Jan. T., 1904, by plaintiffs, from decree of C. P. Erie Co., Feb. T., 1902, No. 2, dismissing bill in equity in case of Millcreek Township et al. v. Erie Rapid Transit Street Railway Company.
    Before Mitchell, C. J., Dean, Brown, Mestrezat and Thompson, J J.
    Affirmed.
    Bill in equity for an injunction.
    Walling, P. J., filed the following opinion:
    The bill in above case was filed to restrain the defendant from collecting a greater rate of fare than five cents, for the transportation of each passenger from any points between the west line of Harborcreek township and Seventh and State streets, in Erie city. The case was heard upon bill, answer, replication and testimony. The facts are found as follows :
    1. The defendant is an electric street railway corporation, duly organized with the chartered right to construct a street railway, inter alia, from Erie city, easterly along the Buffalo road to the borough of North East, passing through the township of Millcreek,. which adjoins said city. The charter of said corporation was granted in 1898, and gave the defendant also the right to extend its line of railway upon certain streets in Erie city.
    2. That the above named plaintiffs, other than the township of Millcreek and its road commissioners, are the owners of real estate abutting upon the Buffalo road in said township. That about March 10,1899, they, with other like owners of real estate, met at the schoolhouse in their neighborhood to discuss the question of the right of way and franchise for said company upon said road, and the terms thereof; at which meeting a committee of three was appointed to meet with the township road commissioners and officers of the defendant company, to determine the question of the proposed franchise and the terms thereof, etc.
    3. That on March 18, 1899, said committee met with said commissioners and officers and discussed and agreed upon the terms of a franchise, which afterwards, to wit: on March 25, 1899, was duly granted by the road commissioners of said township to the defendant, for the' construction, etc., of an electric car line upon the Buffalo road in said township.
    4. That said franchise was accepted by the defendant and contains clauses, inter alia, as follows:
    “ 14th. The said road shall be commenced by actual operation upon the streets by grading and laying ties and rails thereon on or before June 1, 1899, and having the same fully completed in compliance with this franchise and in full operation on or before December 1, 1899. And in ease said road is not built and in operation from the east city line to Harbor-creek township on or before December 1, 1899, in compliance with this franchise, then this franchise and all the rights thereunder to be null and void and of no effect. And the said road commissioners are to take up and remove any track or work done by said company along said street, and the entire cost and expense thereof to be collected by the road commissioners from the said company on its bond to be given therefor.”
    “ 19th. This franchise is granted upon the express further condition that the said street railway company shall carry its passengers (or furnish transportation for the same) from the west Harborcreek township line, to a point at or near Seventh and State streets, in the city of Erie, and to any and all other points in the said city of Erie, reached by said company’s track, for a fare not exceeding five cents for each person, each way.”
    5. That after the granting of said franchise the said owners of abutting property who are named as plaintiffs in the bill made no objection to the construction of said railway in front of their respective properties. Some of them had in 1898 granted formal permits for the building of said railway in front of their properties, and it does not appear that any of them gave the defendant any express permission to build the road because of anything done at either of said meetings, or because of said franchise. They desired the road built and wanted a five cent fare from their homes to the business part of the city and seemed to depend on the road commissioners and the franchise to protect their interest.
    6. That the defendant proceeded slowly with the building of the railroad; did some grading, etc., in the open season of 1899, and finished the grading nearly all the way through the township and laid the ties and rails in the summer of 1900. At the request of the defendant the road commissioners extended the time for the completion of said railway until January 1, 1901, and on March 4, 1901, the road commissioners passed resolutions ordering the defendant to remove the ties and rails from said road, and to restore it to its original condition within thirty days, of which defendant had notice, but nothing was done under it, and on May 6,1901, said resolutions were reconsidered; but nothing further was done to give new life to the old franchise.
    7. That on said May 6, 1901, the road commissioners of Millcreek township granted the defendant a new franchise, which it accepted, and which is attached to defendant’s answer and contains, inter alia, clauses as follows:
    “17th. This franchise is granted upon the express further conditions that the said street railway company shall carry passengers from the west Harborcreek township line to any and all points in the said city of Erie, reached by said company’s tracks, for a fare not exceeding five cents for each person, each way.”
    “ 20th. It is further agreed that the Erie Rapid Transit Street Railway Company shall pay to the road commissioners, individually, the sum of $4.00 per day for each and every day necessarily engaged in overseeing the construction of the said road on the Buffalo road, in Millcreek township, Erie county, Pennsylvania.”
    Pursuant thereto the defendant completed its railway through said township and the same has been in use and operation since August 81, 1901.
    8. The defendant never abandoned said Buffalo road since it began work therein in 1899, although some work was taken up and afterwards replaced.
    9. The defendant built about one mile of track in Erie city, but was restrained by this court from the use of certain city streets included in its charter, but which were already occupied by another street railway company. And in March, 1901, the city councils ordered the defendant to remove the track already laid in the city, which defendant did, and later in January, 1902, formally abandoned all its rights in Erie city and has no railway therein.
    10. That the defendant’s railway connects with the tracks of the Erie Electric Motor Company at the eastern limits of the city, and by agreement with the latter company the defendant uses its tracks and motive power to run cars into the city, to and beyond Seventh and State streets. By which agreement the defendant pays the said motor company three cents for each passenger that defendant carries in the city, and said passengers have transfer privileges to and from the motor company’s city lines.
    11. That the defendant charges and collects from each passenger five cents for transportation, each way, from the west line of Harborcreek township to the P. & E. crossing, which is a short distance west of the city limits, and five cents more from the P. & E. crossing to Seventh and State streets, which entitles the passenger to transfer privileges as above stated. And the defendant company refuses to carry passengers, or to provide them with transportation, from said township line, or from intermediate points in Millcreek township, to Seventh and State streets for a single fare of five cents, as provided in the original franchise; but the fare charged is not a violation of the new franchise.

      12. That the road commissioners of Millcreek township are each entitled to receive from the township f>2.00 for every day necessarily spent in the discharge of official duties, and that said road commissioners spent some time in overseeing the completion of said railway after the granting of the new franchise, but have never asked or received any compensation therefor from the defendant.
    LEGAL CONCLUSIONS.
    1. That on the question of fare charged by defendant the above named plaintiffs, aside from Millcreek township, have no interest different from that of the general public, and are improperly joined as plaintiffs.
    2. That the railroad, not having been built within the time specified in the original franchise, as granted or extended, the same by its express terms became null and void, and neither of the parties has any rights thereunder, except the right of the road commissioners to remove the defendant’s track, etc., from the street.
    3. That the question of the validity of the new franchise is not material to this case.
    4. That a decree should be entered dismissing plaintiffs bill, but without prejudice, and that plaintiffs pay the record costs.
    DISCUSSION.
    The franchises were granted by the road commissioners for the township, and in my opinion the rights of the public can only be carried out through the township. The property owners had no contract with defendant, as to the rate of fare, and they have no different interest therein from the general public. The property owners are not parties to the franchise and have no such interests as to enable them to join with the township in an action against the defendant for an illegal breach of the franchise: Coatsville & Downingtown, etc., Street Railway Company v. West Chester Railway Company, 206 Pa. 40.
    The owners of property on the side of the road where the railway was built were in a position to protect their interests by special contract, or to prevent the building of the railway, but property owners on the other side of the street had no standing to contest the building of the railway: North Penna. R. R. Co. et al. v. Inland Traction Co., 205 Pa. 579.
    When the railway was not built within the time specified in the original franchise it became void. The language is plain: “ then this franchise and all the rights thereunder to be null and void and of no effect.” It required no action on part of the township to complete the forfeiture: Commonwealth ex rel. v. Lykens Water Co., 110 Pa. 391. See also Kehr’s Petition, 23 Pa. C. C. Rep. 460.
    In fact the defendant is not claiming any rights under the old franchise.
    The question of the validity of the new franchise is not directly brought in issue by the pleadings, and as it would not change the result of this case and may be the subject of future litigation I decline to here pass upon it.
    As an individual I believe the rate of fare charged between Wesleyville and the business part of the city is excessive, and-now that the new bridge at the P. & E. crossing is finished I hope to see the fare reduced. If the local traffic between said points could be accommodated by return trip tickets, or tickets sold in bulk, at reduced rates, it would be a great favor to the public, and in my opinion would not reduce the income of the defendant. At the same time it should not be overlooked that since the original franchise was granted the defendant has lost the city end of its line and has to pay three cents for each person carried in the city. Under all the circumstances it is to be hoped that some satisfactory adjustment may be had in this matter. 'While plaintiffs are not, in my opinion, entitled to the relief prayed for, they may have some other remedy and therefore the bill should be dismissed without prejudice.
    And now, January 25,1904, the prothonotary is directed to enter a decree nisi, in accordance with this opinion, to become absolute unless exceptions are filed sec. reg.

      Error assigned was decree dismissing the bill without prejudice.

      Charles P. Hewes, with him John S. Rilling and Henry E. Eish, for appellants.
    Where a cause of complaint is one common to all the plaintiffs, and the right under which all claim is precisely the same as to each, and the complaint of all is against the same defendant for the doing of acts which affect all alike, and in the same manner, and the defense set up is common to all the plaintiffs, and the testimony, proof and decree are alike as to all the plaintiffs, a bill filed by several such plaintiffs against the common defendant is not multifarious : Rafferty v. Central Traction Co., 147 Pa. 579.
    If the company accepts the franchise they must comply with all the conditions embraced within it or surrender possession of the road: Allegheny City v. Millville, etc., St. Ry. Co., 159 Pa. 411; Plymouth Township v. Chestnut Hill & Railway Co., 168 Pa. 181; Minersville Boro. v. Schuylkill Electric Railway Co., 205 Pa. 394.

      Franh Gunnison, for appellee,
    cited : Heilman v. Lebanon, etc., Ry. Co., 175 Pa. 188 ; Becker v. Lebanon, etc., Ry. Co., 188 Pa. 484; Penna. R. R. Co. v. Montgomery Pass. Ry. Co., 167 Pa. 62; Holton v. New Castle Ry. Co., 138 Pa. 111.
    May 23, 1904 :
   Per Curiam,

The decree is affirmed on the opinion of the court below.


source: Caselaw Access Project

author: Mr. Justice Brown,

license: Public Domain

text:
    Radey v. McCurdy, Appellant.

      Landlord and tenant—■Trade fixtures—Removal—Extension of lease.

    When a tenant attaches to the land fixtures necessary for him in the conduct of his business, the presumption is that, at the expiration of his lease, he.will remove them; and it is his right to do so. They are not put in for the benefit of the landlord, and, until the tenant, after his term expires, leaves them on the premises in which he no longer has any interest, no intention can be imputed to him to abandon them to his lessor.
    Where a tenant having trade fixtures on the premises, secures a new lease in the nature of an extension of the old lease, and the new lease contains no reservation of the right to remove the fixtures, the tenant may keep the fixtures on the premises without giving the landlord the right to restrain their removal at or before the expiration of the second lease. In such a case the law will not require the tenant to do the vain thing of removing the fixtures one day and moving them back the next.
    Argued April 26, 1904.
    Appeal, No. 303, Jan, T., 1903, by defendants, from decree of C. P. No. 1, Phila. Co., June T., 1903, No. 3495, on bill in equity in case of John Henry Radey v. James McCurdy and Samuel McCurdy, trading as McCurdy Brothers.
    Before Mitchell, C. J., Dean, Brown, Mestrezat and Thompson, JJ.
    Reversed.
    Bill in equity for an injunction.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was the decree ordering the defendants to pay the plaintiff the sum of $5,400 and costs.

      M. Eampton Todd and Daniel O. Donoghue, for appellants.
    The right of a tenant to remove trade fixtures continues as long as the tenant is in possession as a tenant: Hill v. Sewald, 53 Pa. 271; Hey v. Bruner, 61 Pa. 87; Davis v. Moss, 38 Pa. 346; Seitzinger v. Marsden, 2 Pennypacker, 463; Watts v. Lehman, 107 Pa. 106 ; Furnace Co. v. Stouffer, 127 Pa. 336 ; Wick v. Bredin, 189 Pa. 83; Penton v. Robart, 2 East, 88; Weeton v. Woodcock, 7 M. & W. 14.
    In the absence of an express agreement, title to fixtures in Pennsylvania, as between landlord and tenant, depends upon the tenant’s intention when the fixtures were placed upon the property; and there is no presumption' that a tenant who annexes trade fixtures to the freehold intended to make a gift of them to the landlord for the benefit of a property which the tenant did not own, and it is only upon the tenant’s quitting possession of the premises voluntarily, leaving the fixtures behind him, that an intention to make a gift of them to the landlord is imputed to the tenant: Hill v. Sewald, 53 Pa. 271; Watts v. Lehman, 107 Pa. 706 ; Darrah v. Baird, 101 Pa. 265 ; Townsend v. Underhill, 6 Pa. C. C. Rep. 544 ; Furnace Co. v. Stouffer, 127 Pa. 336.
    An examination of the Pennsylvania cases in which it has been held that fixtures installed by a tenant have become the property of the landlord will show that the tenant had quitted possession of the premises,leaving the fixtures behind him: White v. Arndt, 1 Whart. 91; Davis v. Moss, 38 Pa. 346; Overton v. Williston, 31 Pa. 155 ; Shellar v. Shivers, 171 Pa. 569; or formally abandoned the lease: Darrah v. Baird, 101 Pa. 265; or there was an intention to make the fixtures a part of the realty: Carver v. Gough, 153 Pa. 225.
    As to the second proposition, that the agreement of July 11, 1902, is a new lease and as the defendants failed to have inserted in it a clause securing the right to remove at the expiration of that lease what they had the right to remove at the end of the old one they thereby must be deemed to have abandoned the fixtures to the landlord for the benefit of the freehold and consequently became tenants of the property with the fixtures as part thereof. Such is not the law in Pennsylvania: Seitzinger v. Marsden, 2 Pennypacker, 463; Seeger v. Pettit, 77 Pa. 437 ; East Sugar Loaf Coal Co. v. Wilbur, 5 Pa. Dist. Rep. 202; Darrah v. Baird, 101 Pa. 265. Seitzinger v. Marsden, 2 Pennypacker, 463, is on all fours with the present case.

      William MacLean, Jr., for appellee.
    Where a landlord and tenant enter into an agreement as to the future possession of the premises, the law presumes that they contract as to the premises as they then are.
    A tenant having the right to remove fixtures loses that right upon entering into a new agreement with his landlord for the future possession of the premises, unless the right is reserved at the time.
    It is immaterial that the new agreement purports to extend or renew, or refers to the provisions of a former lease, provided there is nothing in the former lease whereby the tenant may remove the fixtures: Fitzherbert v. Shaw, 1 H. Bl. 258; Thresher v. East London Water Works, 2 B. & C. 608; Heap v. Barton, 12 C. B. 274; Sharp v. Milligan, 23 Beav. 419; Merritt v. Judd, 14 Cal. 59 ; Jungerman v. Bovee, 19 Cal. 354; Apell v. Williams, 3 Daly, 17; Loughran v. Ross, 45 N. Y. 792; Cook v. Scheid, 8 Am. Law. Rec. 493 ; Carlin v, Ritter, 68 Md. 478 (13 Atl. Repr. 370); Scott v. Haverstraw, Clay, etc., Co., 135 N. Y. 141 (31 N. E. Repr. 1102) ; Williams v. Lane, 62 Mo. App. 66 ; Talbot v. Cruger, 151 N. Y. 117 (45 N. E. Repr. 364) ; Sanitary Dist. of Chicago v. Cook, 169 Ill. 184 (48 N. E. Repr. 461) ; Gaughell v. Ainley, 83 Ill. App. 582 ; Stephens v. Ely, 162 N. Y. 79 (56 N. E. Repr. 499) ; Van Vleck v. White, 72 N. Y. Supp. 1026; Smyth v. Stoddard, 105 Ill. App. 510; Champ Spring Co. v. Roth Tool Co., 77 S. W. Repr. 344.

      The obligation upon a tenant to reserve his right of removal in a new agreement is authoritatively stated in all the approved text books: Gibbons on Fixtures, Philadelphia reprint of London Edition (1836), p. 43 ; Ewell on Fixtures, 114; Amos & Ferrard on Fixtures, 3d ed. 160; Lawson on Rights, Remedies, Practice, vol. 6, par. 2899; Tiedeman on Real Property, 2d ed. par. 7; Jones on Real Property, par. 1768; Boone on Real Property, par. 9; Foa on Landlord & Tenant, 3d ed. p. 645; Woodfall on Landlord & Tenant, 17th ed. p. 712; Theobald on Law of Land, p. 26; Washburne on Real Property, 6th ed. sec. 38; 1 Parson on Contracts, 511; Taylor on Landlord & Tenant, 9th ed., sec. 552.
    The Pennsylvania text books give the same doctrine: Jackson & Gross on Landlord & Tenant, p. 54; Williams on Landlord & Tenant, 2d ed. par. 153.
    May 23, 1904:
   Opinion by

Mr. Justice Brown,

This was a bill by a landlord to restrain his tenants from removing trade fixtures from the demised premises. A preliminary injunction was awarded, but subsequently dissolved. Before final hearing all the articles were removed by the tenants, and the court’s decree was that they pay their landlord $5,400, the value of the articles removed, together with the costs of suit.

On September 17, 1892, the appellee leased the premises described in the bill to John C. McCurdy and James McCurdy, trading as McCurdy Brothers, for the term of ten years from October 1,1892. The court found that the articles enumerated in the bill were trade fixtures and belonged to the lessees under the lease of September 17, 1892. The legal conclusion of the learned judge, that the tenants had the right to remove them during the term of their lease, was, therefore, manifestly correct, and under the facts found, the landlord could have raised no question if they had been removed at any time prior to October 1, 1902. Before the expiration of the lease, the tenants, as required by it, gave three months’ notice to the landlord of their intention to terminate it.

In 1899 John C. McCurdy, as found by the court below, “ sold his interest in the stock of goods, wares and merchandise, together with the machinery and fixtures, contained in the building at the northwest. corner of Front street and Susquehanna avenue, to James McCurdy.” On July 11,1902, a new lease was executed by the appellee to the said James McCurdy and Samuel McCurdy, another brother, trading under the same firm name of McCurdy Brothers, and James and Samuel became the lessees under the agreement of that date, which defines the lease to be an “ extended and renewed ” lease of September 17, 1892, at a reduced rental. The appellants removed all the fixtures before October 1, 1908, the date of the expiration of the extended and renewed lease.

Under the foregoing facts, the court below made the decree mentioned for the reason that, even if the lease of July 11, 1902, is to be treated as a renewal of the lease of 1892, between the same parties, the appellants had no right to remove the fixtures after the expiration of the first lease, in the absence of a clause in the second one reserving the right to do so at its expiration. Though the lessees under the first lease had an unquestioned right to remove the fixtures at any time before October 1, 1902, and, if they had done so, could immediately after that date have reinstalled them in the premises with the same unquestioned right to remove them at any time before October 1, 1903, the view of the learned court below is that they became the property of the landlord, because they were not removed and reinstalled, aud there, is no clause in the “ extended and renewed ” lease reserving the right of the tenants to remove them before it expired. Though this has been declared to be the law by some courts, and the learned judge had authority outside of this state to sustain him, we cannot subscribe to such a doctrine as being either in harmony with reason or consistent with fair dealing between man and man.

When a tenant attaches to the land fixtures necessary for him in the conduct of his business, the presumption is that, at the expiration of his lease, he will remove them; and it is his right to do so. They are not put in for the benefit of the landlord, and, until the tenant, after his term expires, leaves them on the premises in which he no- longer has any interest, no intention can be imputed to him to abandon them to his lessor: Hill v. Sewald, 53 Pa. 271; Watts v. Lehman, 107 Pa. 106. There is a distinct finding that McCurdy brothers, the lessees under the lease of 1892, never intended to abandon their trade fixtures. One of the brothers, owning and having them in his possession, on July 11, 1902, entered with another brother into the “ extended and renewed ” lease. The possession of the premises and the fixtures remained unbroken from 1892 to 1908 in at least one of the present appellants ; and yet, because he did not, on the last day of September, 1902, remove them and put them back on the following day, when the “ extended and renewed ” lease began, and the lessees Under it failed to formally reserve the right to remove them at the expiration of the “ extended and renewed ” term, an intention is to be imputed of an abandonment of them to the landlord. Abandonment to him being a question of intention, it cannot be that, under the undisputed facts in this case;the appellants ever intended to or did abandon their trade fixtures. To have removed them one day and put them back the next would have been a vain and useless thing, which the law requires of no one; and it offends reason to say that the landlord had a right to regard his tenants’ property as abandoned to him because one of them, who was to continue as such for another year, needing the same fixtures in his unchanged business into which he had taken another person, had not, when the lease was extended and renewed, inserted a clause giving the tenants the right to remove the fixtures at the end of the extended term. It will profit nothing to review the very many cases brought to our attention by the learned counsel for the appellee to support the decree of the court below. It is sufficient to say that, none of our own do so. They are rather in accord with the view which we entertain, that the plaintiff’s bill should have been dismissed.

“ That a, tenant who erects fixtures for the benefit of his trade or business may remove them from the demised premises, is an established doctrine of the law, but with this qualification—that the removal be made during the term. After the term they become inseparable from the freehold and can neither be removed by the tenant nor recovered by him as personal chattels by an action of trover, or for goods sold and delivered : White v. Arndt, 1 Wh. 94, and the cases cited in the argument. If a tenant remain in possession after the expiration of his term, and perform all the conditions of the lease, it amounts to a renewal of the lease from year to year, and I take it he would be entitled to remove fixtures during the year: ” Davis v. Moss, 38 Pa. 346. “ It is a well settled rule of law,

that a tenant for years who erects fixtures for the benefit of his trade or business, may, at any time during the term, remove them from the demised premises; but cannot after the expiration thereof unless he remain in possession and hold over, so as to create an implied renewal of the lease: ” Darrah v. Baird, 101 Pa. 265. In the late case of Donnelly v. Frick, 207 Pa. 597, we said: “ The presumption of the law, being in fgvor of trade, is that a tenant does not intend to make his trade fixtures part of the realty for the permanent benefit of his landlord,' but will remove them before the end of his term; and it is only when he leaves without removing them during the term that an intention of making a gift of them to the landlord is to be imputed to him: Hill v. Sewald, 53 Pa. 271; Watts v. Lehman, 107 Pa. 106. If, during the term, no intention can be imputed to the tenant to make a gift to his landlord of fixtures, which he had attached to the land for the use of his business, and he has a right to remove them during the tenancy, the same rule ought to, and does apply, when, by permission of the landlord, even without a formal renewal or extension of the lease, he continues to remain on the premises for a definite or indefinite term. During such period, in the absence of any agreement to the contrary, his intention as to his fixtures remains unchanged, and his right to remove them is unaffected by his holding over.” Of great weight is the following from the learned J udge Cooley, in Kerr v. Kingsbury, 39 Mich. 150 : “The right of a tenant to remove the erections made by him in furtherance of the purpose for which the premises were leased, is conceded. The principle which permits it is one of public policy, and has its foundation in the interest which society has that every person shall be encouraged to make the most beneficial use of his property the circumstances will admit of. On the other hand, the requirement that the tenant shall remove during his term whatever he proposes to claim a right to remove at all, is based upon a corresponding rule of public policy, for the protection of the landlord, and which is that the tenant shall not be su ffered, after he has surrendered the premises, to enter upon the possession of the landlord or of a succeeding tenant, to remove fixtures which, he might and ought to have taken away before. A regard for the succeeding interests is the only substantial reason for the rule which requires the tenant to remove his fixtures during the term: indeed, the law does not in strictness require of him that he shall remove them during the term, but only before he surrenders possession, and during the time that he has a right to regard himself as occupying in the character of tenant: Penton v. Robart, 2 East, 88; Weeton v. Woodcock, 7 M. & W. 14. But why the right' should be lost when the tenant, instead of surrendering possession, takes a renewal of his lease, is not very apparent. There is certainly no reason of public policy to sustain such a doctrine; on the contrary, the reasons which saved to the tenant his right to the fixtures in the first place are equally influential to save to him on a renewal what was unquestionably his before. What could possibly be more absurd than a rule of law which should in effect say to the tenant who is about to obtain a renewal: ‘ If you will be at the expense and trouble, and incur the loss, of removing your erections during the term, and of afterwards bringing them back again, they shall be yours ; otherwise you will be deemed to abandon them to your landlord.’ ”

The decree of the court below is reversed and plaintiff’s bill dismissed at his costs, which include those on this appeal.


author: Per Curiam,

text:
    Kennett Square National Bank, Appellant, v. Shaw.

      Contract—Promissory notes—National banks—Affidavit of defense.

    In an action on a promissory note, by payee against maker, an affidavit of defense that the note was to be discounted for the benefit of a certain corporation, and setting up a written agreement by payee to look to the dividends of said corporation for payment, is sufficient to send the case to a jury.
    Argued April 26, 1904.
    Appeal, No. 46, Jan. T., 1904, by plaintiff, from order of C. P. No. 5, Phila. Co., Sept. T., 1902, No. 1784, discharging rule for judgment for want of a sufficient affidavit of defense in case of Kennett Square National Bank •v. P. B. Shaw.
    Before Mitchell, C. J., Dean, Brown, Mestrezat and Thompson, JJ.
    Affirmed.
    Rule for judgment for want of a sufficient affidavit of defense.
    Assumpsit to recover the sum of $5,000.
    Plaintiff in its statement of claim averred that it held certain obligations of an insolvent corporation, the Avondale Marble Company; that the defendant P. B. Shaw and others organized a corporation known as the Pennsylvania Marble & Granite Company to develop and work the properties formerly owned by the Avondale Marble Company; that defendant made his promissory note for the benefit of said proposed corporation, and plaintiff discounted it with an agreement in writing by the president and secretary of the plaintiff that defendant should not be held personally liable on the note, but that plaintiff would look to the profits of the corporation; but that said corporation had refused to pay any part of its profits to plaintiff and said agreement was never authorized or ratified by the stockholders of the plaintiff.
    Defendant filed an affidavit of defense setting up in detail the facts, and the written agreement that he was not to be personally liable.
    The court discharged the rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      M. Hampton Todd, with him O. J. Hepburn, for appellant.'

      James Wilson Bayard and John Gr. Johnson, for appellee, were not heard.
    May 23, 1904:
   Per Curiam,

The stated cause of action is sufficiently denied in the affidavit of defense to send the case to a jury.

Judgment affirmed and procedendo awarded.


author:
Mb. Justice Mestrezat,
      Mb. Chief Justice Mitchell

text:
    Lipowicz, Appellant, v. Jervis.

      Malicious prosecution—Probable cause—Advice of counsel—Referee.

    In an action for malicious prosecution a judgment for the defendant will be sustained where the referee to whom the case has been submitted has found from sufficient evidence that there was probable cause for the prosecution, that the defendant had been convicted, although his fine was subsequently remitted, and that plaintiff had acted under the advice of his counsel who had full knowledge of the facts of the case.
    To sustain an action for malicious prosecution, the plaintiff must allege in his statement and show on the trial of the cause both malice and want of probable cause. If probable cause is shown to exist, it is immaterial that the prosecutor was actuated by malice in bringing the prosecution. His motive will not be inquired into if he had probable cause to believe that the accused party was guilty of the offense.
    The taking of advice of counsel and acting thereon rebuts the inference of malice arising from the want of probable cause.
    Mitchell, C. J., dissents.
    Argued May 2, 1904.
    Appeal, No. 124, Jan. T., 1903, by plaintiff, from order of C. P. Lackawanna Co., May .T., 1901, No. 338, overruling exceptions to report of referee in case of Peter Lipowicz v. William Jervis.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Exceptions to report of J. W. Carpenter, Esq., referee.
    The referee’s findings of fact and conclusions of law were as follows:
    FINDINGS OF FACT.
    1. Peter Lipowicz, the plaintiff, by an agreement in wiiting dated September 6, 1899, leased from the defendant, William Jervis, a building at No. 1837 North Main avenue, in the city of Scranton, and occupied it as a hotel.
    2. The records of the court of quarter sessions show that on February 9, 1901, Peter Lipowicz filed, in the office of the clerk of the court, an application for a license to keep a hotel in this building, and on March 9,1901, the license was granted by the court, and issued March 23. .
    3. Some time in March, 1901, Lipowicz and Jervis had a conversation in which the former notified the latter that he would vacate the premises in question on April 1, 1901, and thereupon Mr. Jervis agreed to lease the place to one Charles Miller, who advanced to Jervis the sum of $800, to be used toward paying for the license, and Jervis then paid the fee of $1,100, and procured the certificate showing that a license had been granted to Peter Lipowicz.
    4. On April 1,1901, Mrs. Jervis, the wife of William Jervis, went to the hotel in question and exhibited the license certificate to Lipowicz, who had not at thart time opened the bar, but upon being shown the certificate, which was retained by Mrs. Jervis, he immediately caused the bar to be opened and the selling of liquor to begin, without having any license in his place of sale, as required by law; and without having it in his possession.
    5. On April 2,1901, William Jervis, acting upon the advice of his counsel, H. L. Taylor, a reputable attorney who had full knowledge of all the facts of the case, went before W. S. Miller, an alderman of the city of Scranton, and swore to an information charging Peter Lipowicz with selling and causing to be sold quantities of liquor, beer, etc., on April 1,1901, contrary to an ordinance of the city of Scranton, of July 30,1900.
    6. The alderman thereupon issued a warrant for the arrest of Peter Lipowicz, and he was arrested and taken before the alderman, who, after hearing several witnesses, found him guilty, and imposed a fine of $100 and the costs upon him, and made out a commitment to commit the defendant therein to the county jail for thirty days, in default of payment of a fine of $100 and costs.
    7. The commitment was given to a constable, but Lipowicz was not removed from the alderman’s office; negotiations for settlement were begun, which resulted in the payment by Lipowicz to H. L. Taylor, Esq., attorney for Jervis, of the sum of $550, and the giving of his judgment note for $550, making $1,100, the amount which Jervis had paid for the license, and the payment of the costs by Lipowicz, and the alderman thereupon remitted the fine and he was discharged.
    8. Lipowicz continued to occupy the premises in question as a hotel, until April 1,1902.
    CONCLUSIONS ON LAW.
    1. There was probable cause for the prosecution which was instituted by the defendant in this cause against the plaintiff.

      2. The plaintiff has shown no cause of action against the defendant.
    8. The defendant is entitled to have judgment entered in his favor.
    In order for plaintiff to recover in a case of this kind, it must appear that the prosecution complained of was malicious and without probable cause. Both elements must exist.

      Error assigned was in overruling exceptions to referee’s report.

      A. A. Vosburg and Charles W. Dawson, for appellant.
    No appearance entered nor paper-book filed for appellee.
    May 23, 1904:
   Opinion by

Mb. Justice Mestrezat,

The defendant made an information before an alderman, charging the plaintiff, Lipowicz, with having sold liquors contrary to an ordinance of the city of Scranton. Lipowicz was arrested and taken before the alderman who, after a hearing, found him guilty of the crime with which he was charged. Subsequently, this suit for malicious prosecution was brought in which the plaintiff avers, as his cause of action, that Jervis, the defendant, appeared before an alderman of the city of Scranton and “ did falsely and maliciously and without probable cause, charge the plaintiff with having sold, or caused to be sold, quantities of liquor, beer, etc., contrary to the city ordinance, approved July 30,1900,” and that by virtue of a warrant issued upon such charge and information, the plaintiff was arrested, convicted of the offense, and imprisoned, and thereafter discharged by the alderman. The case was referred to a referee, under the act of assembly, who found the facts and conclusions of law and directed a judgment to be entered in favor of the defendant and against the plaintiff. The learned court below overruled the exceptions to the referee’s report, and confirmed the judgment which he had directed to be entered.

To sustain an action for malicious prosecution, the plaintiff must allege in his statement and show on the trial of the cause both malice and want of probable cause: Emerson v. Cochran, 111 Pa. 619. And if probable cause is shown to exist, it is immaterial that the prosecutor was actuated by malice in bringing the prosecution: McClafferty v. Philp, 151 Pa. 86. His motive will not be inquired into if be had probable cause to believe that the accused party was guilty of the offense: Beihofer v. Loeffert, 159 Pa. 365.

Here the referee found on sufficient testimony that the defendant had probable cause for instituting the prosecution against the plaintiff for a violation of the city ordinance. He also found, as we have stated, that Lipowicz was tried and found guilty of the charge preferred against him by Jervis. The finding, therefore, established not only the existence of probable cause for the prosecution but the fact that the plaintiff was guilty of the crime with which he was charged. Under these facts, there could be no recovery in this action.

The referee also found that prior to bringing the prosecution, Jervis stated all the’ facts of the case out of which the prosecution arose, to H. L. Taylor, Esq., a reputable member of the bar, and upon his advice instituted the proceeding. Such advice given upon a full statement of all the facts and acted upon in good faith rebuts the presumption of malice arising from a want of probable cause in bringing a prosecution and is .therefore a defense to an action for malicious prosecution. “ Nothing is better settled,” says Stekkett, J., in McClafferty v. Philp, supra, “ than that when the prosecutor submits the facts to his attorney, who advises they are sufficient, and he acts thereon in good faith, such advice is a defense to an action for malicious prosecution. Strictly speaking, taking advice of counsel and acting thereon, rebuts the inference of malice arising from the want of probable cause.” In Beihofer v. Loeffert, supra, McCollum, J., delivering the opinion, says: “ If in good faith he (prosecutor) sought, obtained and honestly followed the advice of competent counsel on a full and. fair statement of all the facts within his knowledge, or which he had reasonable cause to believe he was able to prove, the advice so received and acted upon will constitute a defense to the action. It is wholly unimportant, so far as' the defense is concerned, whether the advice was warranted by the facts submitted to the counsel, as the prosecutor, in this particular, is only responsible for a full and truthful statement of them.”

The judgment of the court below entered upon the finding of the referee is affirmed.

Mb. Chief Justice Mitchell

dissenting:

The learned referee has found that the defendant had probable cause for the prosecution of plaintiff but he has also found facts which show beyond question that while the plaintiff was technically guilty of violation of the ordinance, yet it was only a technical guilt caused by the action of the prosecutor himself (or his wife with his knowledge and assent) in pocketing the license and thereby preventing- the plaintiff from displaying it. The probable cause therefore behind which the defendant now seeks to shelter himself was not an honest probable cause used in good faith, but part of a fraudulent scheme to force payment of the cost of the license. The circumstances leading up to and including the settlement show that the defendant’s action was an abuse of criminal process to collect a civil debt, a fraud which vitiated every part of his action. I would reverse this judgment and send the case to a jury-


text:
    Wharton, Appellant, v. Bradford City.

      Negligence—Municipalities—Defective sewer—Death of child—Proximate and remote cause.

    A city cannot be held responsible for the death of a child from fever contracted from drinking contaminated water of a well, on the ground that the city had deposited the contents of a sewer in an open stream, and that the sewage from the stream percolated through gravelly soil into the well in question.
    In such a case there are no such connected links as make a chain of causes by which the first could be called proximate to the end, and in addition there is the very strong probability of the interposition of other and entirely disconnected circumstances in producing the result.
    Argued May 2, 1904.
    Appeal, No. 144, Jan. T., 1903, by plaintiff, from judgment of C. P. McKean Co., Oct. T., 1900, No. 355, on verdict for defendant in case of Mary A. Wharton v. Bradford City.
    Before Mitchell, C. J., Brown, Mestbezat, Potter and Thompson, JJ.
    Affirmed.

      Trespass to recover damages for death of plaintiff’s child. Before Morrison, P. J.
    At the trial it appeared that plaintiff’s cause of action was the death and illness of her children alleged to have been caused by a fever contracted from the drinking of water from a contaminated well. The statement of claim averred that the city had deposited the contents of a sewer in an open stream, and that the sewage from the stream percolated through gravelly soil into the well on plaintiff’s premises.
    The following offer was made :
    Counsel for plaintiff propose to prove by plaintiff that she is the widowed mother of the children whose names are mentioned in the declaration ; that they died in 1899 ; that they were affected by the disease of typhoid fever, or some kindred disease; that prior to the contraction of the disease they had been drinking from the water of the well on the homestead situate between the house and the stream known as Tuna creek, and that the physicians who attended the children during their illness directed her to discontinue the use of the well, after the disease had set in; and that the death of the children was caused by the negligent discharge of the sewage of the city into the stream above the well, whereby the sewage percolated through the gravel to the waters of the well, thereby causing the death of the child Winifred, and the disease of the child Mary Jane, and the damages alleged in the declaration.
    Plaintiff’s counsel offers the evidence as to the other children as part of the res gestae, being at the same time and occurring under the same circumstances ; and offers to follow this with proof of the liability of the city for the discharge of sewage where it ought not to have been discharged and its probable percolation through the gravel to this well. To show what the effect of the use of that water was on those for whom the claim is made, as well as upon others who may come under its influence.
    Objection by counsel for defendant sustained.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was ruling on evidence as above, quoting the bill of exceptions.

      It. B. Stone, with him Bug ene Mullin and J. M. McClure, for appellant.

      F. P. Schoonmaker, for appellee, was not heard.
    May 23, 1904:
   Per Curiam,

The connection between the act of the city complained of, and the result charged, is altogether too remote and too uncertain to be permitted as a basis of recovery. There are no such connected links as make a chain of causes by which the first could be called proximate to the end, and in addition there is the very strong probability of the interposition of other and entirely disconnected circumstances in producing the result. Whether the city was exempt from liability for the exercise of its governmental functions, as to injuries to health, etc., and similar questions we do not need to consider.

Judgment affirmed.


author: Mb. Justice Potter,

text:
    Irvine’s Estate
    (No. 1).

      Evidence—Practice, O. C.—Act of June 25, 1895, P. L. 279.
    The Act of June 25, 1895,’ P. L. 279, relating to the tairing of testimony of nonresident witnesses applies to proceedings in the orphans’ court.

      Executors and administrators—Surcharge—Failure to sell real estate—Lack of title.

    An executor cannot be surcharged for failing to sell real estate which by the will he had been positively directed to sell, where it appears that although the testator at the time of his death had a paper title to the land in question, other parties have been in possession of the land under claim of ownership and title for thirty years, and that their possession and occupancy was of such a character as to give them a valid title under the laws of the state in which the land was situated.
    Argued May 2, 1904.
    Appeal, No. 295, Jan. T., 1903, by W. J. Knupp, administrator c. t. a. of Guy C. Irvine, deceased, from decree of O. C. Warren Go., June T., 1898, No. 9, on bill of review in estate of Guy C. Irvine, deceased:
    Before Mitchell, G. J., Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.

      Petition for bill of review.
    See 203 Pa. 602.
    The facts appear by the opinion of the Supreme Court.

      Errors assigned were (1, 2) in admitting certain testimony taken under the Act of June 25,1895, P. L. 279; (3-9) various findings of fact and conclusions of law.

      W. TV. Wilbur, with him J. W. Wiggins and W. J. Knupp, for appellant.
    The orphans’ court has no jurisdiction except that conferred upon it by law, and we are unable to find any law enabling it to certify any proceedings to the common pleas court, except those specified by statute. . This act can only apply to courts of which the prothonotary is an officer. This proceeding was not certified to the common pleas, but to the prothonotary’s office, and we fail to find any authority conferred upon the prothonotary to issue any process except by order of the court of common pleas.
    If the executors had any cause for a review, they could present their petition in the court below therefor, and it was wholly unnecessary to ask leave of this court to file a petition for a review in the court below: Parker’s Appeal, 61 Pa. 478; Young’s Appeal, 99 Pa. 74.
    A review as a matter of right will only be granted, first, for error of law apparent upon the face of the record; second, for new matter which has arisen since the decree; third, as a matter of grace, for the admission of proof discovered after decree, which could not have been discovered by reasonable diligence and used when the decree was made: Milligan’s Appeal, 82 Pa. 389; Scott’s Appeal, 112 Pa. 427; Finley’s Estate, 196 Pa. 140; Thomas’s Estate, 184 Pa. 640; Bickford’s Estate, 16 Pa. Superior Ct. 572.
    The petition for a review should be dismissed, for the reason that' taking all the facts as true, as alleged therein, it set out no grounds to justify the court in granting a review of the item of surcharge in question.

      John Gf. Johnson, with him B. I. Ball, Gr. A. Berry taiG.Samuel S. Mehard, for appellees.
    That the orphans’ court is a civil court of record is a proposition which does not require argument. If it is, then proceedings in the orphans’ court are within the explicit provision of this act of assembly.
    The action of this honorable court in granting leave to,file' the bill of review, was an adjudication that the averments of the bill showed ground for relief, if sustained by proof: Van Zile’s Eq. Pl. & Pr. sec. 349.
    Leave to file the bill of review was not asked as a matter of right but as a matter of grace; it was to be granted in the exercise of sound discretion; the circumstances justified the favorable action of the court: George’s Appeal, 12 Pa. 260; Bishop’s Appeal, 26 Pa. 470; Whealen’s Appeal, 70 Pa. 410; Lindsay’s Estate, 9 W. N. C. 463; Milne’s Appeal, 99 Pa. 483; Johnson’s Appeal, 114 Pa. 132.
    May 23, 1904:
   Opinion by

Mb. Justice Potter,

When this case was here before as reported in 203 Pa. 603, the executors were surcharged in the sum of $7,330, on account of depreciation of real estate in the town of Holland, New York. ' The tract of land in question consisted of several hundred acres which the executors had been positively directed to sell. But they never did sell it, and as the testimony then stood, there was no explanation for their failure in this respect.

Shortly after the decision was rendered and the order for the surcharge was made, the executors asked leave to file a petition in the nature of a bill of review in the orphans’ court, in so far as concerned the item of surcharge for the depreciation of the said real estate. The petition set forth that an investigation of the title of the said Guy C. Irvine to the said land had resulted in the discovery of substantial, reliable and sufficient evidence to show that Guy C. Irvine, the decedent, was not in his lifetime or at the time of his death, in possession of said land in the town of Holland, New York, or any part thereof, and that he was not the owner of any title thereto which had any marketable value.

If these averments of the petition were true, they constituted an ample explanation of the failure of the executors to make sale of the land.

It was averred also that the surviving executors were advanced in years, and that their coexecutor, Hon. Rásselas Brown, who died some years since, had been for many years the legal adviser of the testator, and as such was familiar with the title of the testator to the said land in the town of Holland, and, as petitioners believe, had made report that the title was invalid.

Upon consideration of this petition, we were satisfied that the facts therein alleged, if true, were sufficient to relieve the executors from the imputation of negligence in failing to sell the land in question.

Our order granting leave to file the petition in the orphans’ court in the nature of a bill of review, was not, however, intended as in any sense an adjudication of the rights of the petitioners in the matter, nor was it intended in any way to control the discretion of the orphans’ court. That court did, however, and as we think, very properly, regard the petition as sufficient to justify a hearing, which was had, and evidence was submitted and the matters at issue were argued by counsel. Upon consideration thereof, the learned judge of the orphans’ court found the following facts and legal conclusions :

“ 1. Guy C. Irvine at the time of his death owned what is termed a paper title to the land in question. He was not in possession of the land at that time and never had been.

“ 2. At the time Guy G. Irvine obtained his paper title, the land was in the actual possession and occupancy of other persons under claim of ownership and title, and had been so occupied and owned since 1838. That these persons’ possession and occupancy was of such a character as to give them a valid title to the land under the statute relating to title by adverse possession of the State of New York, at the time of Guy C. Irvine’s purchase at sheriff’s sale.

“ 3. That the paper title of Guy C. Irvine was invalid as against the title which these persons had acquired by adverse possession.”

In the first and second assignments of error the appellant here complains of the learned court below, for granting a rule for the taking of testimony under the Act of June 25, 1895, P. L. 279. It is alleged that this act of assembly does not apply to proceedings in the orphans’ court. This objection is answered by the language of the act itself, which is in part as follows: “ That from and after the date of the passage of this act, the testimony of witnesses to be read in evidence upon the trial or hearing of any cause or matter pending or hereafter to be brought in any of the civil courts of record of this commonwealth, when such witnesses reside beyond the limits of said commonwealth, but within the United States, may be taken,” etc. That the orphans’ court is a civil court of record of this commonwealth cannot be questioned. These assignments are, therefore, dismissed.

We see no merit in any of the remaining specifications of error. The evidence is ample to support the findings of fact by the trial court, and to justify the conclusion that the testator’s title was worthless at the time of his death. If the testimony which is now before us had been in the case at the former hearing, the surcharge as to this item would not have been made.

All the assignments of error are overruled and this appeal is dismissed at the cost of the appellant. The modification by the court below of the decree formerly entered, by deducting therefrom the item of 17,330, is approved, and the decree so modified is affirmed.


author: Mr. Justice'Potter,

text:
    Irvine’s Estate
    (No. 2).

      Executors and administrators—Accounts—Supplemental accounts—Orphans’ court practice.

    Executors and administrators will only be compelled to file supplemental accounts for matters occurring after the settlement of their final account. Where a supplemental account has been filed the exceptions to it must be confined to that which is contained in the account.
    Where numerous accounts have been filed and numerous exceptions taken which have resulted in lengthy litigation, and a final decree has been entered discharging the executors, the court will not consider exceptions to a supplemental account as to items which were adjudicated in the former proceedings, or which might have been.
    Argued May 2, 1904.
    Appeal, No. 247, Jan. T., 1903, by W. J. Knupp, Administrator e. t. a. of Guy C. Irvine, deceased, from decree of O. C. Warren Co., March T., 1902, No. 2, dismissing exceptions to account in estate of Guy C. Irvine, deceased.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Exceptions to executor’s supplemental account.
    The opinion of the Supreme Court states the case.

      JUrror assigned amongst others was in dismissing exceptions to account.

      W. W. Wilbur, with him James W. Wiggins and W. J. Knupp, for appellant.

      John G. Johnson, with him S. S. Mehard, George A. Berry and D. 1. Ball, for appellees.
    That the decree confirming the final administration is conclusive of all matters occurring prior thereto is conclusively settled by the authorities : Downing’s Estate, 5 Watts, 90; Bunting’s Appeal, 4 W. & S. 469; Bower’s Appeal, 2 Pa. 432; Weiting v. Nissley, 6 Pa. 141; Chambers’s Appeal, 11 Pa. 436 ; Shaffer’s Appeal, 46 Pa. 131; Shindel’s Appeal, 57 Pa. 43 ; Rhoads’s Appeal, 39 Pa. 186; Huston v. Harrison, 168 Pa. 136.
    May 23, 1904 :
   Opinion by

Mr. Justice'Potter,

As is stated by the learned judge of the orphans’ court, this account relates wholly to transactions included in the period between the filing of the eighth and final account, and the discharge of the executors. The principle is well established that administrators will only be compelled to file supplemental accounts, for matters occurring after the settlement of their final accounts. And as a matter of course, the exceptions thereto should be confined to that which is contained in the account. An attempt has, however, here been made to cover the entire period of the administration. As is pointed out in the opinion of the court below, voluminous exceptions were filed to the seventh partial account, “ and these, with those filed to the eighth and final account, were referred to an auditor, who took a vast amount of evidence, covering the time from the filing of the inventory and appraisement of the property of the estate to the filing of the final account. The auditor made his report to the court, which was heard on exceptions by the court and finally in the Supreme Court. A final decree has been entered and the balance found against the executors has been paid by them except one item, to which the Supreme Court has allowed a bill of review to be filed in this court, and the same is now pending.” Surely there can be no justification for again attempting to traverse the ground so thoroughly gone over.

Some of the items, as to which inquiry is now sought to be made, were adjudicated in the former proceedings and we can see no reason why all of them might not have been. The widest opportunity was afforded to appellants, and the i lost careful and searching investigation was made by the auditor, and his report was reviewed by the orphans’ court and by this court under the 128 specifications of error there assigned. There must be some end to the litigation concerning this estate.

The assignments of error are entirely devoid of merit, and they are dismissed at the cost of the appellant. The decree of the orphans’ court as it now stands is clearly justified by reason, and abundantly sustained by authority, and it is hereby affirmed.


text:
    McGonnell’s License.

      Constitutional law—Delegation of legislative power—Diguor law—Acts of April 11, 1866, P. L. 658, and April 28, 1899, P. L. 68—Potter county.

    The legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make its own action depend.
    The Act of April 28, 1899, P. L. 68, which repeals in express terms the Act of April 11, 1866, P. L. 658, prohibiting the sale of liquor in Potter county, is mot an unconstitutional delegation of legislative power to the voters of Potter county, because it provides that “said repeal shall not go into effect unless a majority of duly qualified voters of said county shall vote in favor of said repeal at an election to be held as provided for in section 3 of this act.”
    Mestrezat, J., dissents.
    Argued May 2, 1904.
    Appeal, No. 112, Jan. T., 1904, by James McGonnell, from decree of Superior Court, Oct. T., 1903, No. 188, reversing decree of Q. S. Potter Co., granting a liquor license in In re Petition for Hotel License by James McGonnell.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Thompson, JJ.
    Reversed.,
    Appeal from Superior Court.
    The only question involved in the case is the constitutionality of the Act of April 28, 1899, P. L. 68, repealing the Act of April 11, 1866, P. L. 658, prohibiting the sale of liquors in Potter county.

      Error assigned was the judgment of the Superior Court.

      W. If. Swetland and John Gr. Johnson, with them Samuel H. Glassmire, for appellants,
    cited as to the constitutionality of the act of April 28, 1899 : Locke’s App., 72 Pa. 491; O’Neil v. Artisans’ Ins. Co., 166 Pa. 72.

      W. I. Lewis, with him Arch. F. Jones, for appellees,
    cited as to the delegation of legislative power: Parker v. Com., 6 Pa. 507; Barto v. Himrod, 8 N. Y. 483; Thorne v. Cramer, 15 Barbour (N. Y.), 112; Santo v. State, 2 Iowa, 165; Ex parte Wall, 48 California, 279; State v. Beneke, 9 Iowa, 203; State v. Field, 17 Mo. 529; Bank v. Brown, 26 N. Y. 467; People v. Stout, 23 Barbour (N. Y.), 349; State v. Wilcox, 45 Mo. 458.
    May 23, 1904:
   Opinion bt

Mr. Justice Brown,

By the Act of April 11, 1866, P. L. 658, the sale of vinous, spirituous, malt or brewed liquors was prohibited within the limits of the county of Potter. The Act of April 28, 1899, P. L. 68, repealed this act, its first and second sections being as follows:

“ Be it enacted, etc., That the act of the General Assembly approved the eleventh day of April, Anno Domini one thousand eight hundred and sixty-six, entitled ‘ An act to prohibit the granting of licenses and sale of intoxicating drinks within the county of Potter,’ be and the same is hereby repealed.

“ Provided, said repeal shall not go into effect unless a majority of duly qualified voters of said county shall vote in favor of said repeal, at an election to be held as provided for in section three of this act.”

The remaining two sections, which provide how the election shall be held, need not be considered. The result of the election having been in favor of the repeals going into effect, the court of quarter sessions of Potter county, in 1903, granted a license to the present appellant. On appeal to the Superior Court, the order granting it was reversed, on the ground that the act of 1899 was unconstitutional, the majority of that court being of opinion that the legislature had delegated its power to the voters of Potter county. On this appeal we will consider no other question, as the Superior Court very properly held that all other questions could be well resolved in favor of the affirmance of the decree of the court below.”

By special legislation, no license could be granted after April 11, 1866, to sell vinous, spirituous, malt or brewed liquors within the county of Potter. When our present general license laws were subsequently passed that county was unaffected by them, and could not come under their operation, except by an act of the lawmaking power of the state. The people of that county had not made it unlawful to issue a license for the sale of liquor, and they could not have done so, for the people of the entire state had, in their organic law, delegated to their representatives in the legislature the sole power of making laws for them and for the government of the commonwealth. The condition of the prohibition of the sale of liquors in the county of Potter could not be changed by its people, nor could they bring it under the general license laws of the state.- The supreme power that had placed it in that condition was the only one that could take it out of the same and make it subject to the general laws regulating the sale of liquor. The legislature without delegating, or attempting to delegate, power which it alone possesses and cannot delegate, could alone lift the ban against the sale of liquors in the county and permit licenses to be issued under the provisions of the general laws. If it did so by the passage of the act of April 28, 1899, the license of the appellant was lawfully issued to him; if, on the contrary, the legislature delegated the people of the county to act for them, its condition, as created by the act of 1866, remains unchanged.

The language of the first section of the act of 1899 is : “ The act of the General Assembly approved the eleventh day of April, Anno .Domini one thousand eight hundred and sixty-six, entitled ‘ An act to prohibit the granting of licenses and sale of intoxicating drinks within the county of Potter,’ be and the same is hereby repealed.” This clearly placed the county in the same class with the rest of the counties of the state, and it became lawful for its court of quarter sessions to grant licenses for the sale of liquor. But the appellees contend that the legislature did not act alone, insisting that the act is a joint one by it and the people, because there is a provision in the second section that “ said repeal shall not go into effect unless a majority of duly qualified voters of said county shall vote in favor of said repeal, at an election to be held as provided for in section three of this act.” If, instead of this proviso, there had been a preamble to the act, that “ whereas, it appears from a petition of a majority of the voters of Potter county that they desire the repeal of the act of April 11, 1866,” could it be pretended that there had been in the repealing act any delegation by the legislature of its power to the people, and that it was their act that repealed the act of' 1866, or would such preamble merely be evidence that the legislature, before it acted, had properly ascertained the sentiment of the community for which it was about to legislate ? There can be but one answer to this. What difference, then, can there be in determining the question of the alleged delegation of power by the legislature, that, after it had distinctly acted and repealed the prior act, it added that its act should not go into effect unless it be certified in the way pointed out in the act, that a majority of the electors of the county for which it had legislated, desired the act of 1866 to be repealed ? The legislature, acting in its representative capacity for the people, should act in accordance with their wishes and sentiments, as far as they can be definitely ascertained, and no enactment can be struck down as- not being the exclusive act of the legislature simply because it was passed in acknowledged deference to public sentiment, or because its operation is to depend upon an expression of opinion by the community to be affected by it, to be ascertained in a regular and orderly manner pointed out in the act itself. The error into which the Superior Court fell was iii not properly distinguishing between the passage of the act and the contingency under which it was to go into effect. Its passage, with its condition, was the act of the legislature alone. After it left that body and was approved by the governor it was a complete law. The people of Potter county could have added nothing to it nor taken anything from it. They were not to say whether it was or was not an act of assembly, and the permission given them to determine the contingency of its operation sprang from and was part of the law itself. What the legislature did in the second section of the act was simply to adopt a popular vote as a means of reaching a result, without which it declared its act should not go into effect. “ The effect of our cases is to settle firmly the rule that the law must be complete in all its terms and provisions when it leaves the legislative branch of the government, and that nothing must be submitted to the judgment of the electors or other appointee of the legislature except an option to become or not to become subject to its requirements and penalties : ” O’Neil et al. v. Artisans’ Insurance Co., 166 Pa. 72.

Though the electors of Potter county were to vote “repeal ” or “ no repeal,” they really voted “ license ” or “ no license,” “ to become subject to the general license laws of the state,” or “to remain a prohibition county.” “Repeal” or “ no repeal ” can have no other meaning, and no other will be given to the words in this effort to strike down the act in which they are used. To sustain its constitutionality we do no more than give them their manifest meaning, as layman and lawyer alike must read them. As this is so, we are relieved from any further discussion of the question before us, for it is directly decided in Locke’s Appeal, 72 Pa. 491, and it would be a work of supererogation to attempt to say anything more, in view of what is there said. In that case the question arose under the Act of May 8, 1871, P. L. 522, entitled “ An act to allow the voters of the Twenty-second ward of the city of Philadelphia to vote on the question of granting licenses to sell intoxicating liquors.” The act provided that no license should issue for the sale of any intoxicating liquors in that ward, if a majority of the voters should vote against license at an election to be held in accordance with the act. We might properly make lengthy extracts from the opinion of Agnew, J., • sustaining the- constitutionality of that act, but prefer, instead of so burdening this opinion, to refer to it as a whole, in which it is conclusively demonstrated that the objection urged against the act of 1899 should not prevail. The true distinction between the exercise by the legislature itself of its powers and a delegation of them to others is there concisely and clearly stated by that learned judge to be: “ The legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action dependí To deny this would be to stop the wheels of government. There are many things upon which wise and useful legislation must depend, which cannot be known to the lawmaking power, and must, therefore, be a subject of inquiry and determination outside of the halls of legislation.”

In commenting upon the foregoing case, we said, in O’Neil et al. v. Insurance Co., supra: “In Locke’s Appeal, 72 Pa. 491, it was held that, inasmuch as the law with all its provisions and its penalties was complete when it left the legislature, and the only question submitted to the electors of the locality was whether they desired this law to become operative in the subdivision of the state in which they lived, such submission did not amount to a delegation of legislative power. No provision or requirement of the law was left to be supplied in order to make it complete in all its parts, but the vote of the electors served to give expression to their wish in reference to the subjection of the locality they represented to its already finished provisions. It has frequently been held that local questions may be submitted in this manner to those who are to be directly affected by their decision. The division of a county is such a question and a law submitting the question to a popular vote and making the division depend on the result of the vote was sustained in Smith v. McCarthy, 56 Pa. 359. So is the location of the county séat: Commonwealth v. Painter, 10 Pa. 214. So also is the granting of licenses to sell intoxicating drinks: Locke’s Appeal, 72 Pa. 491. Such laws are in form and in substance laws in presenti to take effect in futuro upon the ascertainment of the wish of those most directly affected thereby.”

The decree of the Superior Court is reversed, and the order of the court of quarter sessions of Potter county, granting a license to the appellant, is affirmed, the costs on this appeal, as well as those on that to the Superior Court, to be paid by-the appellees.

Mestbezat, J., dissents.


text:
    Turner’s License. Cragan’s License. Sterner’s License. Heckman’s License. Knight’s License.
    Argued May 2, 1904.
    Appeals, Nos. 113, 114, 115, 116 and 117, by B. E. Turner, Patrick Cragan, George W. Sterner, John Heckman and Harry N. Knight, from decree of Superior. Court, Oct. T., 1903, Nos. 189,190,191,192 and 193, reversing decree of Q. S. Potter Co., granting liquor licenses in In re Petitions for Hotel License.
    Before Mitchell, C. J., Brown, Mestbezat, Potter and Thompson, JJ.
    Reversed.
    May 23, 1904:
   Opinion by

Mr. Justice Brown,

These cases are controlled by McGonnell’s Appeal, in which we have this day filed an opinion. The decree of the Superior Court in each case is reversed and the order of the court of quarter sessions of Potter county, granting a license to the appellant, is affirmed, the costs on this appeal, as' well as oh that to the Superior Court, to be paid by the appellees.


author: Pee Ctjeiam,

text:
    Commonwealth ex rel., Appellant, v. City of Pittsburg.

      Mandamus—Municipalities—Councils—School hoard.

    The inconvenience to the councils and other officers of a city, or even to the taxpayers, is not in general sufficient reason for denying a mandamus.
    Where a school board has power to make a requisition upon councils for an appropriation, but makes the requisition in an ambiguous way which misleads councils into* refusing one of the items, the court will not grant a mandamus against councils, but will let the matter go over until the next annual requisition.
    Argued May 3, 1904.
    Appeal, No. 88, Oct. T., 1904, by plaintiff, from order of C. P. No. 2, Allegheny Co., April T., 1904, No. 880, refusing a mandamus in ease of Commonwealth ex rel. The Central Board of Education of Pittsburg v. Mayor Select and Common Councils of the City of Pittsburg.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Petition for mandamus.
    From the pleadings it appeared that the relator before the second Monday of January, 1904, certified to councils a resolution by which it fixed the appropriation for educational purposes for the year beginning February 1, 1904, at $1,375,000.
    An itemized statement of the expenses for which the money was appropriated was made a part of the certificate. This statement showed among a large number of other items, one item for purchase of property, $100,000, and another for new high school building, $200,000. Sometime thereafter the finance committee of the councils received at their request from the secretary of the central board a copy of the contract made by that board for the purchase of a site for a high school, which consisted of an offer of the owner and the resolution of the board accepting it. The offer was to sell a certain tract of land to the central board for $300,000, $100,000 of which was to be paid in cash, or before April 1, 1904. The resolution was to the effect that the proposition was. accepted, “ provided that no money be paid on this property until the appropriation for the same has been passed by councils.” The defendants alleged that they understood the proviso above mentioned to mean that the acceptance of the offer to sell the ground by the central board was not absolute, but was conditioned upon the appropriation by the city councils of the money to pay for the same, and that by this proviso the central board had intended to submit to the judgment of the city councils whether or not the property should be purchased, and that, acting upon that understanding, and not approving the purchase, they passed the appropriation ordinance omitting the money required for this purpose.
    The court refused a writ of peremptory mandamus.

      Error assigned was the order of the court.

      S. S. Robertson, for appellant.

      William Watson Smith, assistant city solicitor, with him W. B. Rodgers, city solicitor, and T. B. Carnahan, for appellee.
    May 23, 1904:
   Pee Ctjeiam,

The inconvenience to the councils and other officers of the city of Pittsburg, or even to the taxpayers, is not in general sufficient reason for denying a mandamus. It is conceded, and indeed could not be denied under the terms of the act of 1878, that the authority to determine the amount of money necessary for conducting the schools is in the central board of education, and a requisition by the board is mandatory upon councils to make the appropriation. Being a public duty imposed by statute upon the municipality mere inconvenience of compliance is not sufficient reason for refusal to enforce obedience by mandamus.

But the board having the power to make requisition should do it in proper form and at proper time. Councils must adjust their expenditures to the municipal income, and to do this intelligently they are entitled to have all the required items of appropriation before them at the time when the law requires them to act. The requisition by the appellants in the present case was accompanied by an explanatory and itemized statement which showed among other things that $ 100,000 of the sum asked was for purchase of a site for a high school, under a contract which provided that “ no money be paid on this property until the appropriation for the same has been passed by councils.” This was understood by councils, not unfairly, to be a purchase of the land by the central board subject to the approval of councils. The latter apparently not approving the purchase, omitted that item from the appropriation. For this result the appellants are at least in equal fault with councils. It was their duty to make their demand in unambiguous terms which councils could clearly understand as being unconditional. Not having done so the inconvenience of the result should fall upon themselves. The matter therefore must go over until the next regular annual requisition. .

Judgment affirmed.


text:
    Rosenberg v. Firemans Fund Insurance Company, Appellant.

      Insurance—Fire insurance—Proofs of loss—Evidence.

    In an action upon a policy of fire insurance it is not error to refuse the request of the defendant company to send out the proofs of loss with the jury. Proofs of loss are for the court in order that it may determine as a preliminary matter whether there has been a sufficient compliance with a condition precedent to the institution of the action. It has been uniformly held that they are not evidence for the plaintiff, and cannot be read to the jury.
    Where in an action upon a policy of fire insurance the defendant company claims that after the fire the plaintiffs failed to comply with the terms of the policy which required them to permit an examination of the property that remained, to produce their books and vouchers, and to submit to an examination under oath, and the evidence on the subject is conflicting, the case is for the jury.
    Argued May 9, 1904.
    Appeal, No. 48, Jan. T., 1904, by defendant, from judgment of C. P. Northampton Co., June T., 1902, No. 14, .on verdict for plaintiff in case of Max Rosenberg and Max Senderowitz, trading as Rosenberg & Senderowitz, v. Firemans Fund Insurance Company.
    Before Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Assumpsit on a policy of fire insurance.
    The opinion of the Supreme Court states the case.

      Errors assigned were (1-5) refusal of points; (6) refusal to permit proofs of loss to go out with the jury.

      Edward J. Fox and John D. Hoffman, for appellant.

      Russell G. Stewart, with him Joseph H. Stofflett, for appellee.
    May 23, 1904:
   Per Curiam,

This action was on a policy of fire insurance, and three grounds of defense were presented. The first was that the goods burned were not of the value claimed; the second, that the plaintiffs had feloniously caused the fire; and the third that after the fire the plaintiffs failed to comply with the terms of the policy, which required them to permit an examination of the property that remained, to produce their books and vouchers, and to submit to an examination under oath. The first two grounds raised questions for the jury only, and under the conflicting testimony as to what occurred in relation to the third the whole issue became one of fact. The question whether the plaintiffs had in good faith offered to submit to an examination as to all matters relating to the fire was submitted by the learned judge with full, clear and accurate instructions, to which no exception could be taken.

It was not error to refuse the request of the defendant to send out the proofs of loss with the jury. Proofs of loss are for the court, in order that it may determine as a preliminary matter whether there has been a sufficient compliance with a condition precedent to the institution of the action. It has been uniformly held that they are not evidence for the plaintiff and cannot be read to the jury : Cole v. Manchester Fire Assurance Co., 188 Pa. 345; Cummins v. German American Insurance Co., 192 Pa. 359. They were offered by the plaintiff not generally nor as evidence of the amount of loss, but specially for the consideration of the court. If the defendant desired to use them as evidence of premeditation .or design, the question of their admissibility for that purpose could be raised only by its offer of them.

The judgment is affirmed.


author: Mb. Justice Mestbezat,

text:
    Fletcher, Appellant, v. Hoblitzell.

      Will—Construction—Devise—Remarriage of husband—Remainder—Acceleration.

    Testatrix by her will directed as follows: “Whatever other property I may have at the time of my death, whether real, personal or mixed, I give, devise and bequeath as follows, viz: To my children if any I have at the time of my death. Should I die without issue, then to my sister and my husband, equally for life, or in ease of my said husband, until he shall marry again. In case of the death or remarriage of my said husband his share is to go to my said sister and in case of the death of my said sister her share is to go to my said husband. Upon the death of both, the whole to go to my brother and upon his death to his children absolutely and in fee.” The husband subsequently remarried, and thereafter testatrix’s sister died. Held (1) that upon the husband’s remarriage he was completely divested of any interest in the estate; (2) that the sister’s death did not revive the husband’s former share, nor give him the sister’s share, thus placing in him the entire estate for life; (3) that upon the death of the sister the remainder was accelerated, and vested in possession in the remainderman at once.
    A remainder may be accelerated where the devisee in a life estate refuses to accept it, or where he has no capacity to take, or where the devise of the preceding estate has been revoked by the testator, or has been forfeited by some act or omission of the devisee.
    The intent of a testator is to be gathered from the whole will. Every sentence and word in it must be considered in forming a judicial opinion upon it.
    Argued May 10, 1904.
    Appeal, No. 81, Jan. T., 1904, by plaintiff, from judgment of C. P. Bedford Co., April T., 1900, No. 75, for defendant non obstante veredicto in case of Frank Fletcher, Administrator of Charles C. Reamer, deceased; Legatee of Georgia Edith Manning, deceased, v. James J. Hoblitzell, The Savage Fire Brick Company and Van H. Manning.
    Before Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Reversed.
    Assumpsit for royalties. Before Bell, P. J., specially presiding.
    The facts are stated in the opinion of the Supreme Court.

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

      J. II. Longeneeker and Frank E. Colvin, with them Moses A. Points, for appellant.
    The rule that a will should be construed in favor of the heir at law does not apply in this ease, as the husband is not the wife’s heir: Bender v. Dietrick, 7 W. & S. 284; Irvin’s App., 106 Pa. 176; Ryan’s Est., 14 W. N. C. 79; Lord v. Bourne, 68 Me. 368; Tillman v. Davis, 95 N. Y. 17; Wilkins v. Ordway, 59 N. H. 378 ; Storer v. Wheatley, 1 Pa. 506.
    When the husband’s interest expired, by his remarriage, and Etta’s by death, the gift over to Charles was accelerated by operation of law, and took effect in possession immediately: Woodburn’s Est., 151 Pa. 586 ; Langfield’s Est., 4 Pa. C. C. Rep. 82.

      No inapt words, nor misuse of proper words, will be destructive of the plain intent, as ascertained from the whole will: Kelley v. Kelley, 182 Pa. 131; Levy’s Est., 153 Pa. 174; Ferry’s App., 102 Pa. 207.

      John M. Reynolds, for appellee.
    By the express terms of the will the whole which at testatrix’s death vested in her sister and husband is now vested in the husband for life : Hancock’s Appeal, 112 Pa. 532; Ellis’s Appeal, 22 W. N. C. 135; Weidman’s Appeal, 42 Legal Int. 338; Bruckman’s Est., 195 Pa. 363 ; Reck’s App., 78 Pa. 432; Yarnall’s Appeal, 70 Pa. 335; Doebler’s Appeal, 64 Pa. 9; Hitchcock v. Hitchcok, 35 Pa. 393; 1 Jarman on Wills, 744; Rupp v. Eberly, 79 Pa. 141; Geisinger’s Appeal, 1 Mona. 600.
    Even if the court be of opinion that there is an inconsistency in the meaning of the two clauses as contained in the testatrix’s will, still the devise passes to the husband for his life, under the rule that when two clauses in a will are repugnant to each other, the latter must prevail: Constantine v. Constantine, 6 Vesey, 100; Bender’s Est., 10 Lanc. Law Rev. 157; Holmes’s Est., 46 Legal Int. 6; Newbold v. Boone, 52 Pa. 167; Shreiner’s Appeal, 53 Pa. 106; Stickler’s Appeal, 29 Pa. 234; Horwitz v. Norris, 60 Pa. 261; McDevitt’s App., 113 Pa. 103 ; 1 Jarman on Wills, 744; Rupp v. Eberly, 79 Pa. 141; Geisinger’s App., 1 Mona. 600.
    The husband under this will is in the position of an heir at law and he is not to be excluded except by express devise or necessary implication.
    If there is any doubt in the mind of the court as to the proper interpretation of the will in the case at bar, the construction to apply is that which most nearly conforms to the intestate laws: Smith’s App., 23 Pa. 9; Park’s Est., 4 Pa. C. C. Rep. 560; Dubs v. Dubs, 31 Pa. 149; France’s Estate, 75 Pa. 220; Minter’s Appeal, 40 Pa. 111; Horwitz v. Norris, 60. Pa. 261; Stehman’s Appeal, 45 Pa. 398; Passmore’s Appeal, 23 Pa. 381; Burd v. Burd, 40 Pa. 182.
    May 23, 1904:
   Opinion op

Mb. Justice Mestbezat,

In 1887, Georgia Edith Reamer, subsequently intermarried with Van H. Manning, and her three sisters and one brother were the owners in fee of a tract of land situated partly in Bedford county and partly in Somerset county. By a lease dated January 3 of that year, they granted and leased to James J. Hoblitzell the exclusive right and privilege of mining and removing fire clay from the land for a term of fifty years, for which he was to pay them a minimum rental or royalty of $250 per month. Hoblitzell’s interest in the lease subsequently became vested by assignment in the Savage Fire Brick Company, which began mining operations in 1887 and has since continued them. Each of the lessors was entitled to receive the one fifth of the rentals. Georgia Edith Manning died on September 17,1893, leaving to survive her her husband but no children. She left a will dated December 28, 1892, which was duly probated, and the part which is material to this controversy is as follows: “ Whatever other property I may have at the time of my death, whether real, personal or mixed, I give, devise and bequeath as follows, viz: To my children if any I have at the time of my death. Should I die without issue, then to my sister, Etta N. Reamer, and my husband, "Man H. Manning, equally for life, or, in case of my said husband, until he shall marry again. In case of the death or remarriage of my said husband his share is to go to my said sister and in case of the death of my said sister her share is to go to my said husband. Upon the death of both, the whole to go my brother, Charles C. Reamer, and upon his death to his children absolutely and in fee.”

Man H. Manning, the husband, remarried January 5, 1898. Etta N. Reamer, the sister of the testatrix, died January 29, 1899.

Mrs. Manning received the one fifth of the royalties accruing under the lease until her death in September, 1893. From that time until January 1, 1898, her interest in the royalties was paid by the Fire Brick Company in equal shares to her husband and her sister Etta. After the remarriage of Manning, on January 5, 1898, Mrs. Manning’s share of the royalties was paid b}r the Fire Brick Company to her sister Etta during her life. At her decease, Man H. Manning and Charles C. Reamer each claimed these royalties under Mrs. Manning’s will and each instituted an action against Hoblitzell and the Savage Fire Brick Company to recover that portion of the royalties accruing since Etta N. Reamer’s death. The defendant company admitted its liability for the royalties which-amounted to the sum of $1,975.50. • The two actions were tried together and the facts being undisputed, the court directed a verdict in each case for the plaintiff for the sum admitted to be in the hands of the defendants, reserving the following question: “ Under the will of Mrs. Georgia Edith Manning and the undisputed facts in the case, did the remarriage of Van H. Manning cut him out of all rights under the will,- and out of the estate of his wife, as is contended by representatives of Charles C. Reamer, or is he still entitled to collect the whole of the income of this land?” Subsequently, the court entered judgment on the reserved question in the action brought by Manning in favor of the plaintiff and in the action brought by Reamer in favor of the defendants, non obstante veredicto. Reamer's administrator has taken this appeal from the judgment entered against him in favor of the defendants and Manning, who was permitted to intervene, is the appellee. During the pendency of this action, Charles C. Reamer died and his administrator, Frank Fletcher, was substituted as plaintiff. •

W e think the learned trial judge erred in his interpretation of Mrs. Manning’s will. The first objects of her bounty were any children she might leave to survive her, but this provision of the will was inoperative, as she died childless. Her entire estate would have gone to her children. Her next thought was to give a life estate to her husband and her sister, which she did in the following language: “ then to my sister, Etta N. Reamer, and my husband, Van H. Maiming, equally for life, or, in case of my said husband, until he shall marry again.” The estate given the sister is a clear, unqualified life interest or share in the testatrix’s estate, but that devised to the husband is subject to be defeated by his remarriage at any time during his life. The manifest intention of the testatrix, as disclosed by this language, is that her sister and her- husband are to take her property in equal shares, she absolutely for life, and he for his life, but on the express condition that on his remarriage his interest in the estate should absolutely cease and his share should pass beyond his ownership and control. This purpose of the testatrix is emphasized by the next succeeding sentence of the will in which it is provided that “ in case of the death or remarriage of my said husband his share is to go to my said sister.” As affecting his interest in her estate, the testatrix treats death and remarriage as synonymous terms. On the happening of either event, regardless of the time of its occurrence, Manning’s share in his wife’s estate was at once and for all time determined.

Nor do the subsequent clauses of the will change this disposition of the estate. They are predicated upon the assumption that Manning would not remarry. The testatrix had given him an interest in her estate “ until he shall marry again.” She intended that this limitation should follow and attach to the subsequent provisions of the will, and that her husband’s right to her sister’s share of the estate and the postponement of the vesting in possession of the estate in remainder until his death should depend upon his remaining unmarried. The testatrix, having in her devise to her husband plainly and unequivocally made his interest in her estate depend upon his remaining unmarried and having directed that it should go over on his remarriage, did not deem it necessary to repeat this condition on which he held his interest in her estate in the subsequent clauses of the will. Her intention to deprive him of the share she gave him in her estate the moment he remarried was clearly expressed in immediate connection with the gift itself, and no other provision of the will shows anything in conflict with it. His enjoyment of his wife’s devise to him depended upon his performance of the condition that he would not assume marital relations with another.

It is conceded under the provisions of the will that when Mr. Manning remarried on January 5,1898, his interest in the estate ceased and went to his wife’s sister, Etta N. Reamer, for life. But it is contended that upon the death of Miss Reamer, the whole of Mrs. Manning’s estate vested in Manning for life, and did not vest in possession in the remainderman until Manning’s death. It is claimed that Etta N. Reamer’s death not only revived Manning’s former share, but gave Etta’s share also to him, thereby placing in him the entire estate during his life. This proposition we regard as wholly untenable. The intent of the testatrix is to be gathered from the whole will and not from a few of the many clauses in it. Every sentence and word in a will must be considered in forming a judicial opinion upon it: Turbett v. Turbett, 3 Yeates, 187. As observed above, it is conceded by all .parties that the share given Manning in the first instance, which was the undivided one half of the estate, was conditioned upon his remaining unmarried, and that it ceased when he remarried in 1898. Such is the clearly expressed intention of the testatrix. Excepting an interest devised to her husband during his widowerhood, the testatrix desired that her estate should remain with her family; that it should go to her sister Etta for life and then to her brother and bis children. If, however, the contention of the appellee be adopted as the proper interpretation of the will, we must give the whole of the testatrix’s estate, after Etta’s death, to Manning for life when, as conceded by all parties, the gift of the one half of the estate was to be terminated on his remarriage. In other words, that it was the intention of the testatrix to exclude her husband from the use of the one half of her estate as a penalty for his remarriage before Etta’s death, but that after her death it was the intention of his wife to give him the whole of the estate for his life. This, in view of the fact that the devise over was to testatrix’s brother and his children who were the natural beneficiaries of ber bounty is clearly illogical and violative of the manifest purpose to make his interest in his wife’s estate depend at all times upon his remaining unmarried.

But the language of the clause in question also condemns this construction of it. It says : “ and in the case of the death of my said sister her share is to go to my said husband.” This language recognizes the prior division of the estate into two “ shares ” which are devised to testatrix’s sister and husband respectively. The clause gives the sister’s “share,” and not the whole estate, upon her death to the husband. If, therefore, any part of the estate revested in the husband under this clause of the will, it is only the one half, and not the whole, of the estate. Neither party to the controversy contends for this construction of the clause.

It is further contended that the provision in the will that the estate should go over “ upon the death of both ” the sister and the husband, shows that it was the intention of the testatrix that on the death of the sister the estate should vest in him and not go over until his death. But this, like the clause immediately preceding it, must be read in connection with the other portions of the will. Had Manning remained unmarried, he would have taken Etta’s share upon her death and, having the other share in his own right, he would have held both shares or the whole estate until his death. “ Upon the death of both ” was used by the testatrix in anticipation of her husband not marrying again, the penalty for which was the deprivation of the enjoyment by him of any part of her estate.

The learned trial judge in his opinion asks what becomes of the life estate in the interval of the time between the death of the sister Etta, and the subsequent death of the husband. Manning’s life estate was determined by his remarriage, his own act, and the remainder was accelerated and vested in possession in the remainderman on the death of Etta N. Reamer. This results from the well settled rule governing the acceleration of remainders which applies here. Examples of the application of this rule are given in 24 Am. & Eng. Ency. of Law (2d ed.), 418, as follows: “ The common instances in which a remainder is thus accelerated is where the devisee of the life estate refuses to accept it, or where he has not capacity to take, or where the devise of the preceding estate has been revoked by the testator or has been forfeited by some act or omission of the devisee.”

We are of opinion that the interest of Van H. Manning, which he took under his wife’s will, was determined on his remarriage and that no interest in her estate subsequently vested in Mm on the death of Etta N. Reamer, but that on the happening of that event the whole estate went to the remainderman. It follows that it was error for the learned trial judge to enter judgment'for the defendant on the question reserved.

The judgement is reversed, and it is now ordered and directed that the court below enter judgment on the verdict in favor of the plaintiff, Frank Fletcher, administrator of Charles C. Reamer, deceased. The costs of this appeal and in the court below to be paid in equal proportions by the appellant and the appellee, Van H. Manning.