author: Mb. Justice Potter,

text:
    Fuller’s Estate.

      Will — Devise—Residuary clause — Intestacy.
    1. The intention of the residuary clause in a will is to pass the whole estate and prevent any part of it from coming under the intestate laws. When the language of a residuary clause is ambiguous, the courts lean towards a broad rather than a narrow construction in order to avoid intestacy.
    2. Where a devise for life is made to a son with remainder to the devisee’s children or issue, and it is provided that upon the death of the devisee without leaving issue, the property shall pass to the heirs of the testator, the heirs are to be ascertained as of the date of testator’s death and include the devisee for life, whose share of the remainder passes under his will.
    3. Where a father devises a life estate in land to his son for his natural life, and if he shall die without lawful issue living, then the devise is to become a part of testator’s residuary estate, and he further directs-that the residue of his estate shall be sold, and that the son shall receive one-third of the proceeds, and the son survives the father, and then dies, the son’s representative is entitled to have the land devised for life to the son included in the residuary estate and to claim one-third of the proceeds of the residuary estate thus enlarged.
    Argued May 10, 1909.
    Appeal, No. 217, Jan. T., 1908, by Elizabeth M. Fuller, from decree of O. C. Fayette Co., March Term, 1907, No. 43, dismissing exceptions to adjudication in Estate of Smith Fuller, deceased.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Exceptions to adjudication. Before Steel, P. J., specially presiding.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was decree dismissing exceptions to adjudication.

      Sterling, Higbee & Matthews, with them Smith & Brownfield and Robinson & McKean, for appellant.
    The bequest of William B. Fuller of any part of this fund'was not vested. -He had no interest in it: Moore v. Smith, 9 Watts, 403; King v. Crawford, 17 S. & R. 118; Seibert’s App., 13 Pa. 501.
    If William B. Fuller had died after the execution of the will of Smith Fuller, but previous to the death of Smith Fuller, his legacies under the will of Smith Fuller would have lapsed: Comfort v. Mather, 2 W. & S. 450; Cunkle’s Est., 1 Pearson, 436.
    If as a matter of fact, at the date of the will of Smith Fuller, William B. Fuller had been dead and that fact were known to testator, the legacies would have lapsed or been void: Barnett’s App., 104 Pa. 342; Dildine v. Dildine, 32 N. J. Eq. 78.
    Where part of the residuary provisions of the will fail, then such share so failing is distributed under the intestate laws: Barnett’s App., 104 Pa. 342; Neff’s App., 52 Pa. 326; Gray’s Est., 147 Pa. 67.

      S. Ray Shelby, of Crow & Shelby, with him William E. Crow, for appellee.
    At the death of the testator, William B. Fuller took a life estate in the real estate mentioned in clause five with a vested remainder in fee to the executors in trust to be sold and distributed as provided by the residuary clause; the vested remainder to the executors subject to be divested by the death of William B. Fuller leaving issue living. William B. Fuller died without issue, so the vested interest to the executors in trust to be sold and distributed as provided by the residuary clause was not divested. The direction to sell is positive and explicit, and it follows that it operated as a conversion of the real estate into money from the testator’s death and that it is to be treated as money for all the purposes of his will. As William B. Fuller died without issue living, clause five is to be construed as though the contingent remainder to his issue living at his death was not in the will: Etter’s Est., 23 Pa. 381; McClure’s App., 72 Pa. 414; Chess’s App., 87 Pa. 362; Fetrow’s Est., 58 Pa. 424; Gray’s Est., 147 Pa. 67; Neff’s App., 52 Pa. 326; Barnett’s App., 104 Pa. 342; Stehman v. Stehman, 1 Watts, 466; Raudenbach’s App., 87 Pa. 51; Appeal of the Board of Missions, 91 Pa. 507; Eberly v. Rupp, 90 Pa. 259; Ewing’s App., 159 Pa. 212; Keller v. Lees, 176 Pa. 402; Wetherell’s Est., 214 Pa. 150; Evans’s Est., 155 Pa. 646.
    October 11, 1909:
   Opinion by

Mb. Justice Potter,

In the will of Dr. Smith Fuller, he provided as follows:

“5th. I give and devise to my son William B. Fuller the dwelling house and lot of ground where he now resides, also the vacant lot of ground adjoining thereto and occupied by him situate on South Gallatin Avenue. Also the dwelling house and lot of ground now occupied by my son John M. Fuller, situate on the south side of Fayette street, together with the one-half of the lot of ground on which my office now stands on Fayette street, to have and to hold during his natural life. If he should die leaving surviving him lawful issue, then at his death I direct the same shall go to such issue in equal proportions; but if he should die without lawful issue living, the said devise shall revert and become part of my residuary estate and be sold by my executors and the proceeds distributed as hereinafter provided.” And in the seventh clause he said: “The rest and residue of my estate, personal and real, I give, bequeath and devise to my executors, and direct them to sell the same at public or private sale, and execute deeds therefor. The real estate to be sold within three years from my death. I direct that the money arising from the sale of my personal property and real estate, directed to be sold, shall be distributed as follows: to Harriet R. Anderson four twenty-fourths (A-24); Elizabeth M. Fuller four twenty-fourths (4-24); John M. Fuller four twenty-fourths (A-24); Frank M. Fuller four twenty-fourths (A-24); and William B. Fuller eight twenty-fourths (8-24).”

The testator died March 14, 1892, and his son, William B. Fuller, died June 28, 1895, leaving a widow, but no issue. By his will he devised and bequeathed all his property to his wife absolutely.

The real estate of the decedent in pursuance of the direction in the will, was sold by his executors, including the properties which had been devised to William B. Fuller for life, and upon distribution of the fund arising from such sales Louisa Fuller, the widow of William B. Fuller, claimed eight twenty-fourths or one-third of the balance in the hands of the executors. This plaim was disputed by the other devisees, so far as the properties in which William B. Fuller had a life estate were concerned, but the auditing judge sustained the claim and awarded to the claimant one-third of the entire balance for distribution. Exceptions to the adjudication were dismissed and the accountant directed to pay out according to the schedule of distribution contained in the adjudication. Elizabeth M. Fuller, one of the residuary legatees and also an heir at law to the testator, appealed from the decree, and assigns for error the dismissal of the exceptions to the opinion of the auditing judge and the entry of the final decree. Counsel for appellant contend that the gift of eight twenty-fourths of testator’s residuary estate, to William B. Fuller, did not include the property in which he was given a life estate, and that upon the death of William B. Fuller, the proceeds of the sale of such property would go to those entitled to take from testator under the intestate law. This construction would cause intestacy, which is always to be avoided if possible by any fair interpretation of the will. The intention of the residuary clause is to pass the whole estate and prevent any part of it from coming under the intestate laws. When the language of a residuary clause is ambiguous, the courts lean towards a broad, rather than a narrow construction, in order to avoid intestacy. This principle applied to the present case, requires a construction of the residuary clause, which will include within it, the property in which William B. Fuller had a life estate. This is in harmony with the express direction of the testator, in clause five, in which he says that the property in question shall, in case of the failure of issue, become part of his residuary estate, and be disposed of by his executors as such. William B. Fuller was made one of the residuary legatees, and the estate to him was in terms a life estate, with remainder to his unborn issue if he should leave any, and in default of issue, the remainder vested in the legatees named, of which he was one.

The principle here involved, is the same as that in Riehle’s App., 54 Pa. 97, and in Buzby’s App., 61 Pa. 111, in which it was held that where a devise for life was made to one, with remainder to the devisee’s children or issue, and it was provided that upon the death of the devisee without leaving issue the property should pass to the heirs of the testator, the heirs were to be ascertained as of the date of testator’s death and included the devisee for life, whose share of the remainder passed under his will.

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


source: Caselaw Access Project

author: Mr. Justice Potter,

license: Public Domain

text:
    Smith's Estate.

      Executors and administrators — Parent and child — Adoption—Right to administer.

    An adopted child does not acquire by reason of his adoption the right to .administer upon the estate of the adopting parent.
    Argued May 10, 1909.
    Appeal, No. 316, Jan. T., 1909, by John R. Smith et al., from decree of O. C. Fayette Co., March Term, 1907, No. 74, dismissing petition to remove administrator in Estate of Berthena Rosanna Smith.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Appeal from the action of the register of wills in refusing to revoke letters of administration. Before Steel, P. J., specially presiding.
    The opinion of the Supreme Court states the case.

      Error assigned amongst others was the decree dismissing the petition.

      F. M. Estes, with him F. X. Geraghty and J. G. Carroll, for appellant.

      E. C. Higbee, of Sterling, Higbee & Matthews, with him D. M. Hertzog and Crow & Shelby, for appellee.

      October 11, 1909:
   Opinion by

Mr. Justice Potter,

It appears from the record in this case, that there was an appeal to the orphans’ court of Payette county from the decree of the register of wills, refusing to revoke letters of administration granted to Herman M. Kephart on the estate of Berthena Rosanna Smith, deceased. The petitioners and appellants are children of Robert L. Smith, deceased, and of his first wife. They were stepchildren of the decedent, Berthena Rosanna Smith, and not of her blood. The decedent died intestate and without known relatives, leaving a large estate, mostly realty. Information was given to the commonwealth, and proceedings were instituted to escheat the estate, Herman M. Kephart being appointed escheator and subsequently, administrator.

The children of Robert L. Smith claimed to be interested in the estate upon three grounds:

1. They claimed to have been adopted as children by the decedent.

2. They claimed that decedent had made a will in their favor, which was lost, or at least had promised to make such a will.

3. They claimed that there was a resulting trust in the reap-estate of the decedent in favor of her husband, Robert L. Smith, and that therefore the said real estate had descended to them as his heirs at law.

The orphans’ court heard testimony upon these contentions and found that none of them were sustained by the evidence produced. The petition was dismissed and the refusal of the register to revoke the letters of administration was sustained. The petitioners have taken this appeal.

The assignments of error are all bad in form, and the final decree of the court below dismissing the exceptions, is not assigned for error. Waiving the insufficiency of the specifications of error, the appellants, upon their own showing, had no standing to maintain their petition to revoke the letters of administration. If their claim to be adopted children of decedent were sustained, it would confer upon them no right to administer the estate, or to select an administrator, or to object to an appointment made by the register of wills.

In McCully’s App., 10 W. N. C. 80, this court held that an adopted child does not acquire by reason of his adoption the right to administer upon the estate of the adopting parent.

In a recent case, Burnett’s Est., 219 Pa. 599, the rule of the earlier cases was recognized, and it was held that: “An adopted child, under the laws of Pennsylvania, cannot inherit from collateral kindred of the adopting parents.” The Act of May 19, 1887, P. L. 125, which so far as the rights acquired by an adopted child are concerned merely re-enacts the provisions of the Act of May 4, 1855, P. L. 430, does not affect the rule of McCully’s Appeal.

If it had been shown that a will which the law would regard as the last will of the decedent had been lost, and due proof of its execution and contents had been made,, such will might be admitted to probate and the letters of administration would then necessarily be revoked. But no such proof was made. Nor was there any evidence of a contract to make a will. The loose expressions of decedent as to how she intended to dispose of her property did not constitute either a will or a contract. Nor was any consideration alleged for such a contract.

If there was a resulting trust in the real estate, that fact can be established in an appropriate proceeding. But the fact, if established, could not bear in any way upon the right to letters of administration upon the personal estate of the decedent. If the letters should be revoked, it would not affect in the slightest degree the rights of any person having an interest in the real estate.

In view of the fact that the appellants have no standing to object to the register’s action in granting letters of administration, it is unnecessary to consider the other questions attempted to be raised by this appeal.

The decree of the court below is affirmed.


text:
    Teed’s Estate.

      Will — Unattested alterations — Presumption—Signature at end.

      1. Unattested alterations in a will though proved to have been made by the testator, in the absence of any evidence showing when they were made, will be presumed to have been made after execution.
    2. Where a will was written on the fourth page of a sheet of letter paper, and was signed by the testatrix at the foot of such page and there attested by two subscribing witnesses, and at the top of the third page was an unsigned and unattested clause appointing an executor, the appellate court will sustain the probate of such a paper as a will, excluding the matter on the third page, where the orphans’ court has found from sufficient evidence that the writing on the third page was placed there after the execution of the writing on the fourth page.
    Argued May 11, 1909.
    Appeal, No. 26, Jan. T., 1909, by Kate Messmore, from decree of O. C. Fayette Co., March T., 1908, No. 120, dismissing appeal from register of wills in Estate of Sarah E. Teed, deceased.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Appeal from register of wills. Before Work, P-. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was decree dismissing appeal from register of wills.

      Thomas H. Hudson, with him D. W. McDonald and James R. Cray, for appellant.
    That part of the act requiring that wills shall be signed at the end thereof has been construed by this court in three cases: Hays v. Harden, 6 Pa. 409; Wineland’s App., 118 Pa. 37; Saunders v. Samarreg Co., 205 Pa. 632.
    This question has been decided by our lower courts in several cases which were not appealed, and we refer to these decisions as showing the construction placed upon some of the features peculiar to the case at bar: Frazier’s Will, 20 Phila. 40; Baird’s Est., 15 Pa. C. C. Rep. 247; Monroe’s Est., 8 Lack. L. News, 306; Morgan’s Est., 12 Pa. Dist. Rep. 341.

      October 11, 1909:
    Keeping in mind Brownfield’s statement that Mrs. Teed had told him before he began to write that he was to be the executor, and from an inspection of the will itself, a logical conclusion would be that it was all written at the same time.
    The presumption in this case has not been rebutted and the proof of the appellees has not come up to the legal requirement: Knauss’s App., 114 Pa. 10; Cozzen’s Will, 61 Pa. 196; Herster v. Herster, 116 Pa. 612; Miller’s Est., 179 Pa. 645.

      William E. Crow and S. Ray Shelby, for appellee, were not heard.
   Opinion by

Mr. Justice Potter,

It appears from the record in this case, that a paper purporting to be the last will of Sarah E. Teed, was admitted to probate by the register of wills of Fayette county. It was written on the fourth page of a sheet of letter paper, and was signed by testatrix at the foot of the fourth page of the sheet and was there attested by two subscribing witnesses. On the third page of the sheet of paper was written an unsigned and unattested clause. The following is a full copy of the instrument :

“Uniontown Pa. Sept 13th 1906.
“I Sarah E. Teed give and bequeathe to My son Charles G. Teed and his Son Wm. E. Teed and Daughter Allice E. Teed, all My real and personal property. I want My funeral expenses paid and all Moneys left in bank to go to My son Charles G. Teed.
“I give to My cousin Mrs. Thomas Brownfield my gold watch & chain.
“I give to Kate Messmore the sum of one dollar.”
“Sarah E. Teed.
“Witnesses:
“Wm. H. Miller
“John N. Dawson.”

At the top of the third page of the sheet appeared this clause, disconnected, and unsigned.

“I appoint My friend Thomas Brownfield My Executor.”

Decedent’s daughter, Kate Messmore, appealed from the decree of the register admitting the will to probate, and the court dismissed the appeal, refused an issue and ordered that the probate should stand, except as to the clause appointing an executor, which was adjudged to be void. Exceptions to this order were overruled, and dismissed by the court. The daughter then took this appeal.

It is conceded by the court below, as well as by the appellee, that if the clause appointing an executor was written before the testatrix signed the will, then it was not signed “at the end thereof,” as required by the act of 1833, the statute of wills, and could not be admitted to probate. But counsel for appellee claim that the evidence taken before the court below, shows that the clause in question was written after the execution of the will proper, and amounts to no more than an unexecuted codicil. The court below so found, and in its opinion, said: “The main question before the court then is, whether the clause on the fourth (should be third) page appointing an executor was there when the will was signed and witnessed or whether it was added at a subsequent time. We have examined the testimony in this case with great care for the purpose of determining this question, and are of the opinion from all the testimony offered that the clause on the fourth (third) page appointing the executor was written after the testatrix-signed her name on the first (fourth) page and after the same was witnessed by the two witnesses.”

The only testimony as to the signing, is that of Thomas Brownfield, who wrote the will. In the first part of his testimony he was not quite clear as to whether he wrote the whole thing at once. He said he wrote the will on September 13, 1906, the day it bears date, wrote all of it on both sides of the sheet; would not like to say that he wrote all of it at the same time. Saw both witnesses sign the will. Would say that Miller signed it first. After testatrix signed the will, witness took it and left it with Mr. Bowman of the National Bank of Fay^ ette County. Mr. Bowman sealed it in an envelope, and after the death of testatrix, witness got the will from Bowman and left it for record. Referring to the clause on third page, appointing an executor, he said he did not think it was written when the will was signed, but thought it was written after the signature was attached.

On cross-examination, witness testified as follows:

“Q. Mr. Brownfield, as I understood in your testimony, when you got down to the bottom of this page in writing it, Mrs. Teed signed? A. That is my recollection. Q. And the other part was written after, but you do not know when? A. She said then she wanted me -her executor. Q. And that was afterwards attached? A. Yes. Q. You do not know when? A. It was very soon after. Q. But was it after the will was signed? A. After she had signed that.”

This is explicit. The two witnesses to the will also testified that the front page was read in their presence and they signed as witnesses. Neither one saw the writing on the other page which is the clause in dispute, and it was not read to the testatrix. It did not appear that either witness saw anything, except the first page, which testatrix had signed.

The only thing upon which appellant pretends to stand, is the evidence of I. L. Messmore and H. K. Barb, who testified that the witness, Thomas Brownfield, had told them on different occasions that he did not write any of the will after testatrix had signed it, and that the part of the will on the back of the sheet was written at the same time as the front page and before testatrix signed it.

Brownfield testified that he had no recollection of having made these statements. The evidence of the two witnesses does nothing more than put into dispute the fact of the alleged conversation, and its substance. It throws no light upon the real matter under investigation, which is, the time of signing the instrument, as compared with the time when the additional clause was written. Our examination of the testimony has satisfied us of the soundness of the conclusion reached by the court below in this respect. The matter written on the fourth page, constituted in itself a complete will. If the additional clause in question had been signed, it would not have changed anything which appeared in the body of the will. It only provided an executor. While the witness Brownfield admitted that his recollection was not entirely clear, yet he stated as his final belief, that the clause in question was written after the will was signed. Against this, appears no opposing testimony, but only the possibility that at some other time, not when he was testifying under the sanction of an oath, Brownfield may have given as his recollection, a different version. Be that as it may, in his evidence in this case, his final conclusion, and the best of his recollection is, that Mrs. Teed signed the will at the bottom of the page, as soon as it was written, and that the line on the top of the third page was written by him afterward. There is no evidence to contradict this, and the appearance of the paper, its form and contents, all go to sustain the statement. In the absence of evidence the presumption would be, that such an addition to the will as that here shown, was made after the signature of the testatrix, and that of the subscribing witnesses had been put upon the paper. The general rule is thus stated in 1 Under-hill on Wills (1900), sec. 268, where it is said: “Unattested alterations in a will, though proved to have been made by the testator, in the absence of any evidence showing when they were made, will be presumed to have been made after execution, and consequently, unless properly attested, will not operate as a partial revocation of the will.” And again in Page on Wills (1901), sec. 432, it is said: “An alteration in a will is, as a general rule, presumed, in the absence of evidence, to have been made by the testator after the execution of the will. This rule is different from that often said to obtain in the case of other written instruments for this reason: In the case of other instruments it is a civil wrong, if not a crime, to alter a written instrument. In case of wills the testator may alter the will as much as he pleases, without wronging anyone.” We feel that the evidence against the conclusion that the will was signed before the attaching of the clause on page three, is so vague and unsatisfactory, that a verdict against the validity of the will, on that account, ought not to be allowed to stand. Under this test, which is the proper one to apply, we think that the court below was undoubtedly right in refusing an issue. The specifications of error are overruled, and the decree of the court below is affirmed.


author: Mr. Justice Brown,

text:
    Deffenbaugh v. Hess, Appellant.

      Husband and wife — Tenant by curtesy — Mines and, mining.

    While a tenant by the curtesy has no right to open and mine coal from the lands which he holds for life, where such land was unopened and unmined at the time of the death of the wife, still as the coal in place is land he has a life estate in it, although it may be valueless to him, and with this estate the remainder-man cannot interfere; but if the remainder-man and the tenant by the curtesy join in a deed and sell all their interest in the land as a whole, the money proceeds thereof take the place of the land, and the tenant by the curtesy is entitled to the whole income therefrom, during his life; and this rule applies as to the coal even where the tenant by the curtesy and the remainder-man have by one deed sold the surface and by a later deed have sold the coal in place.
    Argued May 11, 1909.
    Appeal, No. 148, Jan. T., 1909, by defendant, from judgment of C. P. Fayette Co., June T., 1908, No. 597, for plaintiff on case stated in suit of Henry J. Deffenbaugh v. John Ellsworth Hess, Guardian of Margery E. Deffenbaugh, a minor.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Case stated to determine ownership of income derived from the proceeds of the sale of coal in place. Before Van Swearingen, J.
    The court entered judgment for plaintiff on case stated.

      Error assigned was the judgment of the court.

      W. J. Sturgis, with him Geo. D. Howell and S. John Morrow, for appellant.
    Unopened mines are not the subject of dower or curtesy, nor can any life tenant liable to impeachment for waste, have any interest in them: Neel v. Neel, 19 Pa. 323; Irwin v. Covode, 24 Pa. 162; Kier v. Peterson, 41 Pa. 357; Westmoreland Coal Co.’s App., 85 Pa. 344; Stoughton v. Leigh, 1 Taunt. 402; Coates v. Cheever, 1 Cow. 460; Livingston v. Reynolds, 2 Hill, 157; Marshall v. Mellon, 179 Pa. 371; Williams’ Case, 3 Bland Ch. (Md.) 186; Buckley v. Collins, 8 Luzerne Leg. Reg. 77.
    October 11, 1909:
    If, as all authorities hold, a life tenant has no interest in an unopened mine which has any present value, a sale of such unopened mine under an act designed to give all parties the value of their interests, ought not to create a value where none before existed: Bond v. Godsey, 99 Va. 564 (39 S. E. Repr. 216); Datesman’s App., 127 Pa. 348; Dennison’s App., 1 Pa. 201; Shippen & Robbins’s App., 80 Pa. 391; Henderson v. Henderson, 4 Pa. Dist. Rep. 688.

      D. M. Hertzog, for appellee.
    The only reason why a life tenant is not entitled to open and work unopened mines is because such operation would necessarily cause waste to the owner of the fee in remainder: Neel v. Neel, 19 Pa. 323; Eley’s App., 103 Pa. 300.
    In Alderson v. Alderson, 46 W. Va. 242 (33 S. E. Repr. 228), coal was leased upon royalties by a wife in her lifetime and she died intestate. It was there held that the surviving husband was entitled to his curtesy in the proceeds “ although no coal mine is opened on said land at the time of her death,” but was afterwards opened during the lifetime of the husband. See also Koen v. Bartlett, 41 W. Va. 559 (23 S. E. Repr. 664); Wentz’s App., 106 Pa. 301; McClintock v. Dana, 106 Pa. 386; Shoemaker’s App., 106 Pa. 393.
    Where the life estate becomes productive by the joint act or consent of the life tenant and the remainder-man, there cannot be waste, in its legal sense, to the remainder-man because of his assent thereto: Priddy v. Griffith, 37 N. E. Repr. 999; Seager v. McCabe, 92 Mich. 186 (52 N. W. Repr. 299).
   Opinion by

Mr. Justice Brown,

John A. Moss died January 18, 1888, intestate, seised in fee of 86.41 acres of land underlaid with coal. He left surviving him a widow, Mary A. Moss, and two daughters, Jennie and Margery E., the latter married to Henry E. Deffenbaugh, the appellee. Mrs. Deffenbaugh died March 8, 1897, intestate, seised, subject to the widow’s dower, of an undivided half interest in the real estate which had descended to her from her father. The case stated admits this seisin. Her mother, her husband and one daughter, for whom the appellant is guardian, survived her. On July 17, 1899, Jennie Moss conveyed her one-half interest in the coal vein under the said land, excepting one acre, to Charles H. Foote, and in 1901 she, Mary A. Moss, as widow, the appellant as guardian, and the appellee conveyed the surface of the said farm, together with one acre of coal, to George C. Moore, reserving the one-half interest that had belonged to Mrs. Deffenbaugh in the vein of coal underlying 85.41 acres. On March 28, 1906, the orphans’ court of Fayette county authorized and confirmed a sale by the appellant, as guardian, of his ward’s undivided one-half of the said 85.41 acres of coal, with mining rights, to James R. Cray for $42,705, the appellee joining in the conveyance under the following stipulation:'

“March 26, 1906, H. J. Deffenbaugh will join in petition to court and in deed on condition that net income will be paid to him for life if the court on proper application so orders, otherwise income to be held for minor children.
“H. J. Deffenbaugh, [seal]
“John E. Hess, [seal].”

The appellant and appellee executed a deed to Cray for the said coal land on April 2,1906, and the purchase money having been paid to the guardian and invested by him, the question before the court below and on this appeal is whether the net income arising from two-thirds of the said sum is to be paid to the appellee for life as tenant by the curtesy. The vein of coal which was conveyed to Cray was, at the time of the death of appellee’s wife, and continued to be up to the time of the sale, “unopened, unmined and undeveloped.”

Upon the death of Margery E. Deffenbaugh her surviving husband became tenant by the curtesy of two-thirds of her undivided interest in the real estate which had descended to her from her father. If her mother had died before her, she would have been seised at the time of her death of an entire half in the real estate, and the appellee’s interest as tenant by the curtesy would, upon her death, have been a life estate in that interest. The life estate which vested in him was in all the land of which she was seised at the time of her death, and included not only the surface, but all that was beneath it, and his right to the use of the same was absolute as to the remainder-man so long as he committed no waste working lasting injury to the inheritance. His right was to occupy and cultivate the surface without the consent of the remainder-man, because the use and cultivation of it worked no injury to the inheritance, and when he, .together with the guardian, sold the surface, he became entitled to the interest arising from two-thirds of the proceeds. This is not disputed. If nothing more had been done, nothing more as income from the land would have come to him as tenant by the curtesy, for what remained of value was nothing but the vein of coal. This, at the time of his wife’s death, was unopened, unmined and undeveloped, and remained so at the time of the sale to Cray. That the appellee had no right to open and mine it is conceded, but such concession is not an admission that he did not have a life estate in it, even though it was, and continued to be, valueless to him until opened or sold by the owner of the fee with his consent, coupled with a reservation of his rights. It constituted a part of the land of which his wife had died seised, for coal in place is land, and his common-law right was, therefore, a life estate in it. To every part of the land of which she was seised, whether above or beneath the surface, and over which her dominion extended, he became entitled for life upon her death, and during his life there was no right in the remainder-man to enjoy any portion of it without his consent, even if he himself could derive no benefit from it. Tenancy by the curtesy means nothing less. The remainder-man was excluded from every portion of the land during the life tenancy.. When, however, what had not been productive or profitable to either the life tenant or the remainder-man became so by an act of the latter, permitted by the former, the right of each continued to be the same in the portion of the land made productive and profitable. When the vein was sold the purchase money took its place as land, and the interest of the life tenant followed it in its changed form, from which, without committing waste, he could derive enjoyment. Such enjoyment will not impair the vested right of the remainder-man, and upon the death of the life tenant the money will pass undiminished to the former, just as the land, if not sold, would have passed uninjured by waste. It was upon this correct theory that the learned court below based its judgment, and we concur with it in the view that Stoughton v. Leigh, 1 Taunt. 402, and Bond v. Godsey, 99 Va. 564, the cases mainly relied upon by the appellant, are not in accord with the authorities, and certainly not with reason.

It has been held that the widow of an intestate is dbwable of mines unopened at the time of her husband’s death, if subsequently developed and opened by the owner of the fee, and there can be no difference in principle between dower right and that of tenancy by the curtesy, unless it be in favor of the latter. By the death of the owner of the fee dower is brought into existence, but tenancy by the curtesy, which is initiate during coverture, becomes consummate. In Lenfers et al. v. Henke et al., 73 Ill. 405, it was held, without regard to an alleged agreement between the widow and the remainder-man, that the widow was dowable of mines opened by the heir or owner of the fee after her right of dower had attached, the court saying: “The demandant’s interest in these mines comes strictly within the definition of dower, and if she is to be barred of that right it must be upon some principle or for some reason known to the law. We have not been able to find any authority exactly in point, but the reasoning of the decisions on this question do tend to support the theory we are endeavoring to maintain, viz.: there is no reason why the wife may not be entitled to be endowed of mines opened by the heir or owner of the fee after the right of dower attaches, and before there has been any assignment, as well as in mines opened by the husband. . . . The heir, by opening the mines, has destroyed all other profits of the land. There is no mode of enjoying mines except by working them. If this cannot be done they are profitless to the dowress. As we have seen, it is not waste in her to work mines opened by her husband, and, by a parity of reasoning, we reach the conclusion, it is not waste for her to work mines opened by the heir before assignment of dower. At all events, she would be entitled to dower in the profits in case the mines should be worked by the heir or owner of the fee, before assignment of dower.” This was later approved by the same court in Priddy v. Griffith, 150 Ill. 560. The question before the court in Seager v. McCabe, 92 Mich. 186, was whether, under the statutory provisions of that state, giving the widow of a deceased person the use during her natural life of one-third of all the land whereof he was seised, she was entitled to dower rights in the royalties realized from a lease by the guardians of the minor heirs of the mineral lands which were undeveloped at the time of her husband’s death and solely valuable for the minerals afterwards discovered therein, and it was held that she was. In Dickin v. Hamer, 1 Drew. & S. 284, the vice chancellor seemed to be of opinion that a widow, dowable of the real estate of her husband, not having done anything to preclude her, is entitled to one-third of the income of the proceeds arising from the royalties of mines opened after her husband’s death. In Blakley et al. v. Marshall, 174 Pa. 425, the lessors in an oil lease were life tenants and remainder-men. No lease would have been taken from the life tenants, for they could have given none that would have permitted the lessee to remove the oil from the premises to the injury of the remainder-men. In holding that the life tenants were entitled to enjoy for life the fund arising from the lease, we said: “It was obviously necessary, as well as to the interest of both the tenants for life and the remainder-men, that they should thus unite in the lease, because no practical oil operator would undertake the development of supposed oil territory on the faith of a lease from life tenants only, and for the further and more important reason that, if not promptly developed and worked, the land would soon have been drained of its oil through wells on adjoining lands. . . . An oil lease, investing the lessee with the right to remove all the oil in place, in the premises, in consideration of his giving the lessors a certain per centum thereof, is in legal effect a sale of a portion of the land and the proceeds represent the respective interests of the lessors in the premises. If there be life tenants and remainder-men, the former are entitled to the enjoyment of the fund (i. e., interest thereon) during life, and at the death of the survivor the corpus of the fund should go to the remainder-men. This is as nearly a just and equitable distribution as can be made. It is in accord with the conclusion reached by the learned president of the court below; and there appears to be no reason why the judgment should be either reversed or modified. We are all of opinion that it should be affirmed.” The above reasoning applies with equal force to. the case before us, and the judgment is affirmed.


text:
    Jones v. American Caramel Company, Appellant.

      Negligence — Master and servant — Dangerous machinery — Unguarded machinery — Act of May 2, 1905, sec. 11, P. L. 352.
    1. Where an employer of labor installs a revolving exhaust fan without any guard, in such a position that an inexperienced laborer, who has not been warned or instructed as to danger from the fan, is injured by his hand coming in contact with it in the course of his work, such employer will be responsible for the injury sustained, and nothing will relieve him except proof that the workman was himself guilty of contributory negligence in connection with the accident.
    2. Under the Act of May 2, 1905, sec. 11, P. L. 352, requiring that “machinery of every description shall be properly guarded,” it is the duty of an employer to properly guard a revolving fan placed in an inconspicuous position and the defendant is not to be relieved from the charge of negligence because the plaintiff fails to show that it was customary in factories to place guards or screens over revolving fans.
    3. Under the Act of May 2, 1905, P. L. 352, the legislative mandate is that machinery of every description shall be properly guarded, and customary disregard of this is but customary. negligence rendering everyone guilty of it responsible for the consequences resulting directly and solely from it.

      Negligence — Statutory duty — Usage.
    4. Ordinary usage which is in disregard of a statutory duty cannot be a test of negligence.

      Argued May 18, 1909.
    Appeal, No. 141, Jan. T., 1909, by defendant, from judgment of C. P. York Co., Oct. T. 1907, No. 17, on verdict for plaintiffs in case of James R. Jones and Wilson H. Jones, by the said James R. Jones, his father and next friend, v. American Caramel Company.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Bittenger, P. J.
    The facts relating to the accident are set forth in the opinion of the Supreme Court.
    The court charged in part as follows:
    [Now, the jury will inquire who is telling the truth in reference to that matter; whether the boy was mistaken as to the order he received, and did he act on the mistaken idea. He says the superintendent or foreman is mistaken as to what he said to this plaintiff; that it is not probable that he would tell him to do this work in that way, without telling him that it was dangerous back of the table. You will consider whether it is natural and probable that he told him to stand in front of the table, without telling him that there was danger from this fan, and that therefore he should stand in front. Would it be natural for him, or in anywise probable, for this foreman, knowing the danger of going behind that table, and having seen other boys stand there, to tell the plaintiff to stand in front of the table, without further stating that that was the only safe place to stand? These are matters to reason about. The jury are like all other reasonable beings, or it is supposed that they are or you would not have been selected by both parties to try this case. It becomes, therefore, your duty to ascer- • tain as to which order was given; and you will inquire about these things, and reason these things out.] [11]
    [The law is to warn young people. If they come to a shop, and have not had any experience, they must be warned of danger about machinery. This especially if they have had no experience about machinery. But if they are over fourteen years of age, they are presumed to know the danger of machinery; or, if they had been working at anything like that before, it is not necessary to explain to them that the machine is dangerous at which they are working. They are presumed to have eyes and experience; and it is not necessary to warn them. This, I repeat, if they have been working at such place before, and knew how to operate the machine.' But if they are put to work in a dangerous neighborhood, or where there are other dangerous machines, or they are liable to fall into danger from those machines which are around the place where they are working, and are not properly guarded, and they have had no experience, why then it is necessary for the employer to explain to him or them that there is danger in that locality where they are required to work; and, not only to give the proper warning of danger, but also to show them how to manage the machine that they are not accustomed to work. This is an obligation on the part of the employers; and they are bound to give them sufficient information to enable them to escape danger. This is decidedly so when they are inexperienced, and have not been engaged at work on such machines before, or in the neighborhood of such machines.] [12]
    [The testimony on the part of the plaintiff shows that this young man was injured there for want of a sufficient guard around this fan, and for want of sufficient instruction; that he was not instructed, or that he was not even told, where to stand; that he had no information given to him by the foreman, or by anyone else, of the dangerous character of this fan; that he did not know of its dangerous character, and that he should not put his hand up near that fan; and that without any knowledge of the fan he put his hand up to save his hat, and the injury resulted as described.] [13]
    [The plaintiff alleges as I said before, that this fan was maintained in a dangerous condition; that it did not have a guard upon it as required by the act of assembly; in other words, a proper guard. In the year 1905 the legislature, I suppose upon a demand of people to require protection in so far as the workmen were concerned, passed a law regulating the running of machine shops, with a good many sections in the act; and there are a good many provisions in it also. Section 11 of the act, p. 354 of the Pamphlet Laws of 1905, is as follows, after previous sections providing a great many other things: That “ the owner or person in charge of an establishment where machinery is used shall provide belt shifters or other mechanical contrivances for the purpose of throwing on or off belts or pulleys. Whenever practicable, all machinery shall be provided with loose pulleys. All vats, pans, saws, planers, cogs, gearing, belting, shafting, set-screws, grind stones, emery-wheels, fly wheels, and machinery of every description shall be properly guarded.”
    This act of assembly requires “whenever practicable;” and the court instructs you that machinery of this character, uncovered, shall be properly guarded; and we instruct you in this case, if you shall find that this fan was not properly guarded, that then there is evidence before the jury of negligence on the part of this defendant. This is a positive act of assembly. It is mandatory; and everybody engaged in this kind of business, using machinery, is compelled to comply with its requirements. If it is practicable to have a proper guard to this fan, it would seem to the court — but that is for the jury to decide — if it was practicable to have a proper guard, they were bound-to have it. There is nothing that would excuse them; it was negligence for them not to have it. The jury will say whether, from the weight of all the evidence in the case, there was a proper guard to this fan; — a guard that would prevent injury to this plaintiff, or anyone who had occasion to be there on proper business.
    The defense say that they have properly guarded this fan by placing this heating table in front of it, by placing obstacles at one end of the table, and by the inconvenient method that exists at the other end of the table of getting behind the table, because of pipes and other obstructions. Now, was that a proper guard; that is, all the guard that is proven? Or, I should say, was it proven that there was no guard over this fan that extended into the room? Was this table and the surrounding objects, which were proved here by the witnesses as being there, a sufficient guard to this fan? That is a matter for the jury to determine from the weight of the evidence. It would seem to the court to be a sufficient guard to protect anybody from danger, with the space that has been proved as existing around this table; but that is a question for the jury to determine; and it is for them to determine whether it was properly guarded. If it was properly guarded, why then there was no negligence in maintaining this fan without any other guard. If it was not properly guarded, the jury can find the defendant negligent in running its works without complying with the act of assembly. As we have already said, the act of assembly is mandatory, and made for the good purpose of properly guarding all dangerous machinery. [14]
    Verdict and judgment for James R. Jones for $800 and for Wilson H. Jones for $7,500.

      Errors assigned were (11-14) above instructions, quoting them.'

      Charles A. Hawkins and Henry C. Niles, of Niles and Neff, for appellant.
    Not knowing of a danger will not excuse if it is such that it should have been known by the exercise of the senses: Stackhouse v. Vendig, 166 Pa. 582; Barnes v. Sowden, 119 Pa. 53; Robb v. Connellsville, 137 Pa. 42; Dehnhardt v. Phila., 15 W. N. C. 214; Phila. v. Smith, 23 W. N. C. 242; Shallcross v. Phila., 187 Pa. 143; Lumis v. Traction Co., 181 Pa. 268; Beer v. Clarion Twp., 17 Superior Ct. 537; Cunningham v. Bath Iron Works, 92 Maine, 501 (43 Atl. Repr. 106); Bentley v. Mill Co., 38 Pa. Superior Ct. 172; Martin v. Niles-Bement Pond Co., 214 Pa. 616; Tomaczewski v. Dobson, 208 Pa. 324; Kaufhold v. Arnold, 163 Pa. 269.

      Jos. R. Strawbridge, with him James J. Archer, for appellee.
    The dangers surrounding an inexperienced employee should be pointed out to him, and where no instruction is given the case is for the jury: Neilson v. Coal & Iron Co., 168 Pa. 256; King v. Ford River Lumber Co., 53 N. W. Repr. 10; Lebbering v. Struthers, Wells & Co., 157 Pa. 312; Ross v. Walker, 139 Pa. 42; Levy v. Rosenblatt, 21 Pa. Superior Ct. 543; Rummell v. Dilworth, 131 Pa. 509; Schiglizzo v. Dunn, 211 Pa. 253; Garrity v. Casting & Machine Co., 17 Pa. Superior Ct. 623.
    October 11, 1909:
   Opinion by

Mr. Justice Brown,

At the time Wilson H. Jones sustained the injuries for which he and his father are seeking compensation in this action he was in the employ of the American Caramel Company, operating a candy factory in the city of York. With little, if any, previous experience with machinery, he entered its employment September 5, 1906, when he was within three days of being eighteen years old, and was directed to size and cut candy. When so engaged on September 8 — the fourth day of his employment — he was told by the foreman that he had enough candy cut and was hurriedly ordered to leave the table where he was working and scrape off a heating table a few feet distant. This table, ten feet long and three feet three inches wide, extended along the west side of the room parallel with and two feet three inches distant from the wall. Above it there was set in an opening in the wall, about five feet from the floor, an exhaust fan forty-four inches in diameter. This fan contained six sharp, curved metal blades about twenty inches long. The hub around which the belting passed that operated the fan was nearly seven feet above the floor and projected out from the wall about nine inches. The blades projected from an inch and a half, at their narrowest point, to nine inches at the widest. The fan was used to draw the foul air and dust from the room through the window in which it was set, and revolved nearly 500 times a minute. In obedience to the order given him, Jones proceeded to the east side of the table and cleaned a part of it off. It was too hot, however, as he testified, for him to lean over it and scrape off the west side, and he went back of it to scrape that side. While scraping there he felt that his hat was being drawn from his head, and, reaching up his left hand to keep it on, that member was caught in the revolving fan and so badly mangled that amputation was necessary.

.The exhaust fan was installed to secure greater safety and comfort to the employees -of the defendant and constituted a part of the machinery of its factory. Of it the learned trial judge said in a portion of his charge which has not been assigned as error, “The fan was intended to exhaust the foul air from the room, and also to remove certain small particles of dust which accumulate in a place of that kind; and it was done doubtless for the safety and comfort of the workmen; and done as required by an act of assembly.” It is to be assumed that the fan was in place in compliance with the requirements of sec. 11 of the Act of May 2, 1905, P. L. 352. Another requirement of that same section is that “machinery of every description shall be properly guarded,” and the defendant is not to be relieved from the charge of negligence because, as its learned counsel contend, the plaintiffs failed to show that it was customary in factories to place guards or screens over revolving fans. The legislative mandate is that machinery of every description shall be properly guarded, and customary disregard of this is but customary negligence, rendering everyone guilty of it responsible for the consequences resulting directly and solely from it. Ordinary usage which is in disregard of a statutory duty cannot be a test of negligence.

Whether the fan had been properly guarded was submitted as a question of fact to the jury. In submitting it to them the learned trial judge very properly said that it did not seem to him that there had been sufficient guard to protect anybody from danger. He might have gone further and instructed them to find against the defendant on this question, for the only conclusion to be reached, under all the evidence, is that the fan was not guarded at all. That it was dangerous in its unguarded condition to anyone likely to come in contact with it is not disputed, and as no instruction or warning was given to the inexperienced employee as to its danger and how to avoid the same, the question of the defendant’s negligence was so clearly for the jury, apart from the testimony of the plaintiff as to his ignorance of the existence of the fan, that nothing more need be said on this branch of the case.

Wdiile the statute made it the duty of the defendant to properly guard the fan, it in no degree relieved the employee from the duty of care on his part. For the consequence of his contributory negligence the law remained the same as if the act of 1905 had not been passed. True, under that act the negligence of an employer can now be more readily established, but the injured employee must still present his case free from negligence on his part contributing to his injury; and the jury were properly instructed that if Jones did anything he ought not to have done which contributed to his injury, there could be no recovery. The foreman testified that he had directed him to stand in front of the heating table in cleaning it, but admits that he said nothing about going back of it. He further stated that the direction to stand in front was given because of the danger of the fan, but in the same breath testified that he had said nothing about the fan. The testimony of Jones is that he had not been directed to stand in front of the table; that he was simply told to scrape it; that it was too hot for him to reach over it and scrape the part next to the wall, and that he went around it, finding no obstruction in his way, and began to scrape from the west side. There was testimony by other witnesses that employees had scraped the table from that side in the presence of the foreman. Jones further testified that he knew nothing of the fan that was almost immediately back of him, as he had not noticed it in the three or four days of his employment and no one had ever told him it was there, and that in trying to keep his hat on his head his hand was caught by the blades. Neither the foreman nor any other witness called by the defendant testified that Jones had been told that the fan was there. It is earnestly insisted, however, that he ought to have seen it and known the danger of touching it. The jury could fairly have found otherwise from the testimony of several witnesses — some of them called by the defendant — who testified that even when attention was called to the fan it looked like an open window, except for the dark spot in the center, and that no sound came from it indicating its presence, as whatever noise was made by its revolutions was drowned by the other machinery in the room.

In the portions of the charge assigned as error we have discovered nothing that ought not to have been said to the jury, and in defendant’s first, second, third and fourth points, asking for binding instructions, the statutory duty of guarding the machinery is entirely overlooked. Neither of the points could have been affirmed. The act of 1905 will become a dead letter if an employer who has failed to properly guard his machinery can relieve himself from that duty by the plea that the danger was so obvious that his injured employee ought to have been aware of it and was not entitled to any warning against it. Only the contributory negligence of an injured employee, lawfully employed, will relieve the employer from the consequences of his disregard of his statutory duty. The assignments of error are all overruled and the judgment is affirmed.


author: Per Curiam,

text:
    Pettit v. Jamestown & Franklin Railroad Company, Appellant.
    November 5, 1909:
    Argued Oct. 7, 1909.
    Appeal, No. 177, Oct. T., 1909, by defendant, from judgment of C. P. Venango Co., Aug. T., 1907, No. 72, on verdict for plaintiff in case of Joseph Pettit v. The Jamestown & Franklin Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.

      A. R. Osmer and J. H. Osmer, with them N. F. Osmer, for appellants.

      Peter M. Speer, with him Robert F. Glenn, for appellee.
   Per Curiam,

AH 'the essential points of this case were considered and decided when it was here before, 222 Pa. 490. We do not find any new matters at the second trial which require special notice.

Judgment affirmed.


author: Mr. Justice Elkin,

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

      Will — Trusts and trustees — Use of income.

    Where a testatrix gives one-half of her estate to one of her daughters in trust to apply the “income or so much thereof as it may be deemed necessary” for the comfortable maintenance and support of another daughter who was weak-minded, and upon the death of the latter to pay over the principal to the trustee’s children, and testatrix knows at the time of the making of her will that the weak-minded daughter had an independent estate sufficient for her every want, the trustee, who has taken the sister into her own home in accordance with a request in the mother’s will, is entitled to an allowance for the support and maintenance of her sister out of the income of the trust estate, notwithstanding the existence of the other independent estate.
    Argued May 19, 1909.
    Appeal No. 149, Jan. T., 1909, by Harriet Longenecker, a lunatic, by her committee, from decree of O. C. Lancaster Co., April T. 1903, No. 67, sustaining exceptions to account of Maria Minnich, Trustee under the will of Elizabeth Longenecker, deceased.
    Before Mitchell, C. J., Fell, Brown, Elkin and Stewart, JJ.
    Reversed.
    Exceptions to an item of 14,050 claimed by the accountant out of income for expenditures for maintenance of Harriet Longenecker.

      From the record it appeared that Harriet Longenecker who was of weak mind had been declared a lunatic on February 1,1890, and the People’s Trust Company of Lancaster appointed her committee as to her independent estate. Elizabeth Longenecker, the mother of the lunatic, died on March 29, 1902, leaving a will the residuary clause of which was as follows:
    “All the rest, residue and remainder of my whole estate, real, personal, whatsoever and wheresoever, I order and direct to be divided into two equal shares and portions and I give, devise and bequeath one equal part thereof unto my daughter, Maria Minnich, her heirs, executors, administratrix and assigns. The other equal part thereof I give, devise and bequeath unto her, the said Maria Minnich, in trust that she do continue as much thereof as possible in the real estate I now hold, all situate in said Penn Township and that the residue be put out and placed at interest, in some safe manner, and I order that the income, or so much thereof as may be deemed necessary, be used for the comfortable maintenance and support of my daughter, Harriet Longenecker, who is of weak mind. It is my request also that the said Harriet be given a home in her, the said Maria Minnich’s family, or among people who will properly treat and care for her during her lifetime. At the death of the said Harriet Longenecker, the trust estate given and devised as herein set forth with the accumulated income and accrued interest, as well as what remains of the household furniture and effects given by me to the said Harriet, I give, devise and bequeath unto the children of the said Maria Minnich in equal shares and parts, to those of them then living, and the issue of any of them then dead, per stirpes.”
    After Mrs. Longenecker’s death, Mrs. Minnich took Harriet into her family and she has since continued to reside there.
    The court surcharged the accountant with the sum of $4,050, claimed in the account for expenditure out of income for the support and maintenance of Harriet.

      Error assigned was in the following form:

      October 11, 1909:
    The court erred in sustaining the exception filed on behalf of Susan Workman, viz.:
    Exception is taken to the item of August 7, 1908, “Maria Minnich, board, maintenance and care of cestui que trust, from April 1,1902, to January 1,1909, at $50.00 per month,— $4,050.” Decree of Court. The exception is sustained. The accountant is surcharged $4,050 and the balance is fixed at $22,182.77. As corrected, the account is confirmed.

      D. McMullen, for appellant.
    If the appellee’s contention is sustained, Maria Minnich will, in her own right, receive absolutely the one-half of her mother’s estate, and the other half, with all accumulations, will be held by her until the death of her sister, Harriet, and then be divided among her children.
    If such was the intention, then the bequest in trust for Harriet is a mere hollow pretense, from which it was not intended that she should derive a particle of benefit.
    The very question now before the court was decided by the Superior Court in Minnich v. People’s Trust, Savings and Deposit Co., 29 Pa. Superior Ct. 334.

      M. G. Schceffer, with him O. S. Schceffer, for appellee.—
    This question has not been adjudicated by Minnich v. People’s Trust, etc., Co., 29 Pa. Superior Ct. 334. Neither the trustee under the will of Elizabeth Longenecker, nor her estate, nor anyone interested in the residue of this trust fund, was a party to that case nor bound by it.
   Opinion by

Mr. Justice Elkin,

The question to be determined on this appeal is whether the trustee under the will of Elizabeth Longenecker, deceased, in an account filed, can take credit for the care and maintenance of the cestui que trust for a period of years. Ordinarily there would seem to be only one answer to the question involved and that in favor of the validity of the claim. In the residuary clause of her will the testatrix provided that the residue of her estate, which was nearly all of it, should be divided into two equal shares, one of which shares was given to her daughter, Maria Minnich, absolutely, and the other share was given to the same daughter in trust in order that the “income or so much thereof as may be deemed necessary, be used for the comfortable maintenance and support of my daughter, Harriet Longenecker, who is of weak mind. It is my request, also, that the said Harriet be given a home in her, the said Maria Minnich’s family, or among people who will properly treat and care for her during her lifetime.” At the death of Harriet the will provides that the trust estate shall go to the children of Maria. It is perfectly clear that the testatrix intended Maria and Harriet to be the principal beneficiaries of her bounty. To Maria she gave one-half of the residuary estate absolutely, but because Harriet was of weak mind her share was left in trust, the income, or so much thereof as may be deemed necessary, to be used for her comfortable maintenance and support during life. Maria was named as trustee with the request that Harriet should be given a home with her and this request has been respected by the trustee. Harriet has made her home with the trustee, who now asks that a certain credit be allowed her for this care and maintenance. The amount of the credit claimed is not contested, but it was successfully contended in the court below that the trust estate should not contribute anything toward the support of Harriet because this weak-minded daughter had an ample independent estate to provide for her every want. It may be that the independent estate is sufficient to comfortably support and maintain Harriet, but the testatrix knew of these facts at the time she executed her will, under the terms of which no such limitation was imposed upon the trust estate, the income of which, or so much thereof as may be deemed necessary, it was ordered should be used for her support and maintenance. The will in express terms provides that the income derived from the trust estate shall be used for the care and maintenance of Harriet and no sufficient reason has been given why payment therefor should not follow as a legal consequence of this positive direction. The trustee has comfortably maintained the weak-minded daughter at the place designated by the testatrix, and the income of the trust estate, or at least a certain portion of it, is now claimed by the trustee in payment for this maintenance. It is not a sufficient answer to the claim of the accountant to suggest that it might or should have been collected from some other estate. The trust estate was created for this express purpose and the claim presented but refused in the court below arose by reason of the care required and maintenance provided for Harriet by the trustee under the direction of the will. No abuse of discretion by the trustee has either been claimed or shown and the amount of the charge has not been questioned. Under these circumstances the credit should have been allowed and the account confirmed. It is not necessary in this proceeding to discuss the equities that may exist between the trustee on one side and the committee of the lunatic on the other, relating to the care and maintenance of the unfortunate cestui que trust. We do decide, however, that the claim presented is a valid one against the trust estate.

Decree reversed and record remitted with instructions to allow the credit claimed by the trustee for the board, maintenance and care of Harriet. Costs to be paid out of the trust estate.


text:
    Longenecker’s Estate
    (No. 2).
    Argued May 19, 1909.
    Appeal, No. 151, Jan. T., 1909, by Maria Minnich, from decree of O. C. Lancaster Co., April Term, 1903, No. 67, sustaining exceptions to account of Maria Minnich, Trustee under the will of Elizabeth Longenecker, deceased.
    Before Mitchell, C. J., Fell, Brown, Elkin and Stewart, JJ.
    Reversed.

      Coyle & Keller, for appellant.

      M. G. Schaffer, with him O. S. Schaffer, for appellee.

      October 11, 1909:
   Opinion by

Mr. Justice Elkin,

For the reasons given in the opinion filed at No. 149, January Term, 1909, ante p. 1, this appeal is sustained.

Decree reversed and record remitted with instructions to allow the credit claimed by the trustee for the board, maintenance and care of the cestui que trust. Costs to be paid out of the trust estate.


text:
    Commonwealth, Appellant, v. American Steel Hoop Company.

      Corporations — Foreign corporations — Bonus upon capital employed in Pennsylvania — Act of May 8, 1901, P. L. 150.
    A foreign corporation which was in this state with a portion of its capital employed here before May 8, 1901, is not within the provisions of the Act of May 8, 1901, P. L. 150. It is not liable for a bonus either on the amount of capital which it had employed in this state prior to May 8, 1901, or upon any portion of its capital subsequently brought in and employed here.
    Argued May 24, 1909.
    Appeal, No. 6, May T., 1909, by plaintiff, from judgment of C. P. Dauphin Co., Commonwealth Docket, 1906, No. 530, for defendant on case tried by the court without a jury in suit of Commonwealth ex rel. Attorney-General v. American Steel PIoop Company.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Appeal from tax settlement.
    The court in an opinion by Kunkel, J., entered judgment for defendant on case tried by the court without a jury.

      Error assigned was in entering judgment for defendant.

      Frederic W. Fleitz, deputy attorney-general, with him J. E. B. Cunningham, assistant deputy attorney-general, and M. Hampton Todd attorney-general, for appellant.

      October 11, 1909:

      M. E. Olmsted, with him A. C. Stamm, for appellee,
    cited: Com. v. Danville Bessemer Co., 207 Pa. 302.
   Opinion by

Mr. Justice Brown,

The bonus which the commonwealth would exact from the appellee, a corporation organized under the laws of New Jersey and engaged in business here, is claimed under the Act of May 8, 1901, P. L. 150. By that act a bonus of one-third of one per centum is imposed upon the capital of foreign corporations actually employed or to be employed wholly within this state, and a like bonus is imposed upon each subsequent increase of capital so employed. In Com. v. Danville Bessemer Co., 207 Pa. 302, the claim of the commonwealth was for a bonus upon the capital of the company which had been employed in this state prior to the passage of the act of 1901, and, in sustaining the lower court’s disallowance of the claim, we held that the act did not affect that portion of the capital which was wholly employed here at the time of its passage. In the present ease it is conceded that, under that ruling, the commonwealth is not entitled to a bonus upon $2,820,424.34, the amount of capital which the appellee had employed here prior to May 8, 1901, but a claim is made for the bonus upon that portion of the capital subsequently brought and .employed here, amounting to $1,596,078.58. This claim was disallowed by the learned court below for two reasons, first, because it was of opinion that we had decided in the Danville Bessemer Company case that the act of 1901 did not apply at all to foreign corporations which were engaged in business and employing a portion of their capital here at the time of the passage of that act, and, second, even if the legislature did intend to impose a bonus .upon capital employed after the passage of that act by corporations that had come here prior to its passage in pursuance of the provisions of the Act of June 9, 1881, P. L. 89, and its supplements, such imposition would be in violation of sec. 10, art. 1, of the constitution of the United States, which declares that no state shall pass any law impairing the obligation of contracts.

In Com. v. Danville Bessemer Company the question before the court was the right of the commonwealth to collect a bonus from- the company on capital employed here prior to May 8, 1901, and that case is not to be regarded as authority for anything else than that such capital is immune, but the learned president judge of the court below was clearly right in his view that its reasoning applies with equal force to this claim. A certain class of foreign corporations, of which the appellee was one, transacting business and employing capital here prior to May 8, 1901, were doing so practically on invitation from us, and it is not disputed that the appellee in coming had observed all the terms of the legislative invitation extended to- it. By the act of June 9, 1881, and its supplements, manufacturing corporations like the appellee were encouraged to come and invest their capital here by the permission given them to purchase and hold real estate necessary and proper for their corporate purposes, and each corporation so coming knew the terms upon which it was to come and the right given it to invest some of its capital here in land. These terms included no bonus, which is not a tax, but a consideration for the grant of a privilege or franchise: Com. v. Erie & Western Transportation Co., 107 Pa. 112. The appellee claims no privilege and is not attempting to exercise any franchise which it did not possess under our statutes prior to May 8,1901, and nothing but a clear expression of the legislative intent that it must pay a bonus upon that portion of its capital brought here since May, 1901, will subject it to the same, even if it be conceded that the legislature had the power to do so. We need not now repeat the reasons given in Com. v. Danville Bessemer Company why the act of 1901 was intended to be operative only upon corporations coming into the state after its passage. For those reasons we now hold, because the question is now before us, that a foreign corporation which was here with a portion of its capital- employed-here before May 8, 1901,, is not within the provisions of the act approved that day. At that time the appellee had invested in its plant here the sum of $2,820,424.34. To successfully further conduct its business and protect and, render useful the investment of capital it had already made in this state, it became imperative upon it to remodel and reconstruct its plant. The remodeling and reconstruction were progressing on May 8, 1901, and it is hardly to be assumed for a moment that on that day the legislature intended to say to .the appellee that its improvements must cease, and its plant could not be remodeled or reconstructed in the effort it was making to save the almost $3,000,000 which it had already invested in compliance with the terms of the state’s invitation to do so, unless it paid a bonus for the privilege of saving its jeopardized property. No such legislative intent can be gathered from the statute. For the first reason given by the learned president judge of the court below, as set forth in his opinion, the judgment is affirmed. We are not called upon to consider the second.

Judgment affirmed.


author: Mr. Justice Stewart,

text:
    Gingrich’s Estate.

      Will — Devise—Legacy—Charge on land — Supply of hay to widow to feed cattle.

    1. Where a testator bequeaths to his widow one horse and two cows, and charges land with an annuity in her favor for life, and further directs that the owners of the land “are yearly to put in the stable on the premises occupied by my wife, so long as she remains my widow, as much hay as she may need to feed one horse and two cows without charge,” such a direction creates, as to the hay, a charge on the land, whoever may be the owners of it; but such owners are not obliged to supply the widow with hay during a period when she kept no live stock at all on the land.
    2. In such a case the purpose of the testator was to afford to the widow a supply of only so much hay as she might “need” to feed one horse and two cows. If she placed herself ,in such a position that she did not need the hay for the purpose specified, she was not entitled to receive it.
    3. The mere fact that the widow removes from the occupancy of the residence provided for her by her husband’s will, will not defeat her right to the hay, if as a matter of fact she continued to keep on her land one horse and two cows. Santee v. Santee, 64 Pa. 473, explained and distinguished.

      Argued May 24, 1909.
    Appeal, No. 1, May T., 1909, by Malinda Gingrich, from judgment of Superior Court, March T., 1908, No. 16, reversing decree of O. C. Dauphin Co., dismissing petition to enforce charge on land in Estate of Cyrus Gingrich, deceased.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Appeal from Superior Court.
    The facts appear from the report of the case in 36 Pa. Superior Ct. 266, and by the opinion of the Supreme Court.

      Error assigned was the judgment of the Superior Court.

      William M. Hargest, with him I. B. Swartz and John C Nissley, for appellant.
    If this provision is interpreted for the widow’s benefit, then she had that property for life with enough hay for one horse and two cows to be deposited in the stable, and be able to secure the increased rental therefrom. The Superior Court ignored the case of Santee v. Santee, 64 Pa. 473, which the appellant contends rules the one at bar. See also Wusthoff v. Dracourt, 3 Watts, 240; Marshall v. Blew, 2 Atk. 217; Steele’s App., 47 Pa. 437.

      John E. Snyder, with him E. M. Hershey, for appellee.
    The distinction between the case of Santee v. Santee, 64 Pa. 473, and the case under consideration is obvious. In the Santee case there was a direct bequest to the widow of sufficient hay, limited only by her natural life. In the present case there is no direct bequest of the specific article (hay) to Malinda Gingrich so long as she remains a widow — it is not charged on the land devised — and is directed to be “ put in the stable on the premises occupied by my wife” — and is limited to “as much hay as she may need. ”
    In Goshen’s Est., 9 Lancaster Bar, 18, the orphans’ court of Lancaster county, determined that a bequest of certain rights and privileges to the widow on a farm devised from which she voluntarily withdraws will not entitle her to an equivalent in money.

      October 11, 1909:
   Opinion by

Mr. Justice Stewart,

The testator was the owner of two adjoining farms, each tenanted by a son. On one of these farms which he designated as No. 2, he had erected a separate 'building apart from the farm buildings, which he himself occupied with his wife. By his will he gave to either son the farm he tenanted at a valuation, and charged upon each farm the sum of $5,000, out of the purchase money, the interest to be paid to his widow during her life, and in case either son declined to accept under the terms, the farm devised to such one was to be sold. The devisees accepted, and ten years later, in 1905, the son to whom farm No. 2 was devised, sold and conveyed to this appellee. In the first item in the will, testator gave to his wife the use and occupancy of the dwelling in which he resided, with the appurtenances, during her widowhood, together with certain articles of personal property absolutely, the latter including one horse and two cows. Immediately following came the devise of farm No. 1 to his son Christian B. at .a valuation. The devise of farm No. 2 at its valuation followed next. It is not until we reach the eighth item that we find any direction as to charges upon these farms. This item reads as follows: “I expressly order and direct that Five Thousand Dollars ($5,000) of the purchase money of my farm herein designated as tract No. 1, whether taken by my son Christian at the price I have placed on it, or sold by my executors, and Five Thousand Dollars ($5,000) of the purchase money of my farm herein designated as tract No. 2 whether taken by my son Edwin at the price I have placed upon it, or sold by my executors, shall respectively be and remain as liens and charges on my said two farms respectively (the sum of Five Thousand Dollars being thus charged on each farm), for and during the natural lifetime of my beloved wife, Malinda, the interest thereof respectively, at five per cent ]per annum be annually and regularly paid to her by the respective owners of said farm on the 1st day of April in each and every year, for and during the period aforesaid, and the principal sum at and immediately after her death to be paid by the respective owners of said farm in six equal shares, etc. . . . The owners of the farm herein designated as Nos. 1 and 2 are yearly to put in the stable on the premises occupied by my wife, so long as she remains my widow, as much hay as she may need to feed one horse and two cows, without charge. And my said wife, during said period, shall have the right to take from the orchards on said farm as many apples as she may desire for her use, without charge.” The present controversy has regard simply to the provision as to the hay to be furnished the widow. In April, 1903, the widow removed from the house provided for her in the will, rented it out, and went to live elsewhere with a married daughter. So long as she resided in this house the sons owning the farms regularly stored in the stable on the premises the required amount of hay, but after she removed they discontinued doing so. The son owning farm No. 2, sold to the appellee, March 30, 1905. During the years 1905 and 1906, the widow continuing to reside elsewhere than on the premises devised to her, the appellee stored no hay for her. The widow presented her petition to the orphans’ court in which she set out the provision of the will, and claiming that the provision relating to the hay was a charge upon the several farms, asked that the purchaser of No. 2 farm, this appellee, be required to pay her in money the equivalent of the hay which he had failed to deliver during the years 1905 and 1906. The case raised two questions: first, was the provision for the widow as to the hay a charge upon the land? and, second, if so, had the owner of the farm been released from this obligation for the period claimed, by any act of the widow? The learned judge of the orphans’ court was of opinion that the obligation to furnish the hay was a charge upon the land; and in this he was sustained by a majority in the Superior Court. In this view we also concur. The circumstance that the provision in the will is accompanied by no express words making it a charge on the land, and follows immediately upon one in relation to deferred payments, in which the latter are specifically charged, makes somewhat against this view; since it may be argued with much force that the testator knowing how to subject his lands to an express charge, his omission to do so expressly in this particular case indicates that he had no intention to make the provision a charge. But against this, and as we think overcoming it, is the direction that the hay is to be furnished by the owners of the farm. This duty is not put upon the sons personally, who were the devisees, but upon those who should come into the ownership, whether through acceptance or nonacceptance of the devisees, and was to continue during the wife’s widowhood. That testator had no other expectation than that the hay would be furnished out of the annual crops produced on the several farms, is too manifest to be open to dispute. He certainly could have anticipated no conditions which would make it to the advantage of the owners of the farms to supply the hay from any other source. Had he directed in express terms that the hay was to be furnished out of the proceeds of the farms annually by the owners, no question could have arisen as to whether the provision was a charge on the land. In such case the purpose to make the land stand as security would have to be conceded: Gibson’s App., 25 Pa. 191; Swoope’s App., 27 Pa. 58; Gilbert’s App., 85 Pa. 347. We cannot but regard the language here used as a fair equivalent to a direct expression that the farms were to yield the amount annually. Certainly the testator so intended. Any other construction of his will would expose to defeat the bounty he provided for his widow, and which he intended not as- an illusive thing, but as something substantial and secure.

The second question is one which affords ground for fair dispute; but a careful examination of the will has satisfied us that the better view, that is, the one which most clearly interprets testator’s meaning, is adverse to the widow’s present contention. That the case has peculiar resemblance in some of its features to that of Santee v. Santee, 64 Pa. 473, must be conceded; but there are marked distinctions not only in the language of the several wills but in the conditions which were being provided for. “As we have said over and over, precedents in will cases in interpretation of the intent of the testator are seldom of use to us. They are rarely in precisely the same language, the property devised- is not the same, the objects of his bounty stand in different relations to him and each other:” Graham v. Abbott, 208 Pa. 68. The case of Santee v. Santee, supra, stands as authority for the point there decided, that where it is directed that certain specific articles shall be furnished a widow for her support and maintenance, the provision is not conditioned on her continued occupancy of the premises set apart to her in the will, except as such condition appears from the will. This has been followed in a number of cases, the most recent being Walters’s Est., 197 Pa. 555, where the doctrine is explicitly reasserted. As was said in Santee v. Santee, 64 Pa. 473, the law will not infer “ a foolish and bad condition that she (the widow) should be supported only so long as she remained in that dwelling. It would be as much as to say, no matter how inconvenient or uncomfortable her residence there might become, she must abide there or lose her support.” But beyond this the case rules nothing that has application here. When testator’s widow changed her residence, she did not by that fact forfeit her right to the hay; there is abundant reason and authority for this. We think, however, that there is yet to be found in this will a condition or limitation which must prove fatal to the widow’s present claim. The language of the will is, “The owners of the farm herein designated as tracts No. 1 and 2 are yearly to put in the stable on the premises occupied by my wife, so long as she remains my widow, as much hay as she may need to feed one horse and two cows, without charge.” In a preceding clause testator had given his wife one horse and two cows. He anticipated that she would continue to occupy the premises devised to her, without requiring it, however. He well understood that so long as she continued to occupy the premises he gave her, she would require for her personal comfort and convenience just such articles of live stock as those he gave her, and even though she might change her place of residence, he anticipated that she would still desire to retain some or all of them, for the reason that she had always been accustomed to have them. It is to bq remembered that she was a farmer’s wife, and her experience, habits and associations must have been in the testator’s mind. To what extent she would need them under other conditions than those he had provided, of course he could not tell. Of that she was to be the sole judge. The provision he made for her was ample under any conditions. If she remained on her own premises, she would need all he gave her in the way of live stock; under other conditions less might be sufficient. This was a matter to be determined by her own view of her own need. The horse and two cows he gave to her absolutely, to do with as she chose. Her estate to that extent was increased. But he was giving her something which if she chose to retain would be a charge upon the income he had provided for her. This he did not want, and he provided against it by requiring the owners of the farm to furnish her annually with as much hay as she would need for the support of the live stock he had given her. The evident purpose was not to swell her estate by giving her annually of the proceeds of these farms a certain quantum of the crops raised, but simply to relieve her of the burden of the expense incident to the support of the live stock he had given for her comfort and convenience. He could not have intended that keeping no stock she could commute this by accepting its equivalent in money and thus increase her estate. The key word to his intentions as expressed in the will is, “need.” Her necessities with respect to the amount of hay she was to be entitled to receive had relation to the number of animals she kept; the amount was not to exceed that required for the support of three, but it might be less, depending on her own wishes and views as to the number of animals she chose to keep. We find much support for this view in the particular standard of measurement of the amount which the will directs shall be furnished. Had it been testator’s purpose to give the hay to the widow under any and all circumstances, to be hers to do with as she chose, it is not likely that testator would have adopted the phraseology we have here. He was accustomed to raise and market hay. When selling he certainly never measured hay by any such standard as he here adopts, namely, what would be required to keep a horse or a cow for a given period; unless he had a method peculiar to himself, he sold by the ton. Had he required in this case that the farms were severally to yield to his widow say two tons of hay annually, the gift would have been as absolute and unqualified as the gift of the stock itself; but it is not so. It is a gift of so much, as she may need, a certain purpose being in view. That purpose failing in part, the amount required is correspondingly reduced; failing entirely, the gift is suspended until the necessity returns. This we think the fairest and most reasonable construction of the will as an expression of the testator’s purpose. It does not appear that during any portion of the two years in which the ownership of the farm has been in the appellee, the widow kept any live stock at all. We are clearly of opinion that she was entitled to the hay only as she needed it for the purpose to which we have referred, and that she is entitled to recover only as she shows that she did need it, and that because of respondent’s failure to supply it she was compelled to secure it elsewhere. The reasons for our conclusions differ from those which obtained in the Superior Court, but they are so convincing to us that upon them and them alone we rest our decision of the case. The decree of the Superior Court is affirmed, and the appeal is dismissed at the costs of appellant.


text:
    Historical Society of Dauphin County v. Kelker, Appellant.

      Wills — Probate—Attesting witness — Credible witness — Charitable gift —Act of April 26, 1855, P. L. 328.
    1. An attesting witness to a will containing a charitable devise or bequest who at the time of signing is without knowledge that the instrument that he is attesting is a will, is a credible witness within the meaning of the Act of April 26, 1855, P. L. 328.
    2. A witness to a will containing a charitable devise or bequest must be without interest at the time of the attestation. The fact that such a witness acquired an interest subsequently in the estate under a codicil is immaterial.
    Argued May 25, 1909.
    Appeal, No. 11, May T., 1909, by defendant, from judgment of C. P. Dauphin Co., Jan. T., 1909, No. 18 for plaintiff on case tried by the court without a jury in suit of Historical Society of Dauphin County v. Luther R. Kelker.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Ejectment for two lots of land in the city of Harrisburg. Before Shull, P. J., specially presiding.
    From the record it appeared that William A. Kelker died on February 15, 1908, intestate, unmarried and without issue leaving to survive him Luther R. Kelker, a brother, as his sole heir at law. His will written by himself and dated September 9, 1907, contained the following provision:
    A. “I give and bequeath the Homestead, No. 9 South Front Street, to the Historical Society of Dauphin County, Pennsylvania, with all of its contents (except the books of my father’s library), books, curios and relics of whatever nature they may be. The property to belong to said Society as long as it exists. Should the Society dissolve, then the property shall go to the Harrisburg Hospital as a home for its nurses. In memory of my dear parents is this bequest made."
    It was witnessed by David W. Cotterel and J. Knight Cotterel.
    On February 8, 1908, testator executed a codicil in which both of the witnesses to the original will were made legatees.
    The court found, inter alia, the following fact:
    2. That the witness, James K. Cotterel, was not present when his brother’s signature was attached; that he did not see the testator sign the will in question; that the attesting clause was not read to him, nor had he any knowledge of its contents; that the testator did not declare, or in any way make known, that the paper he had previously signed was his last will and testament; that the witness did not know that anything was written over or above his signature except his brother’s name, and the testator simply said to him, “Here, I want you to witness my signature,” “See these different signatures,” and thereupon without more, he signed his name as a witness to the signature of the testator.

      Error assigned was in entering judgment for plaintiff.

      October 11, 1909:

      Robert Snodgrass, of Snodgrass & Snodgrass, with him E. E. Beidleman, for appellant.
    The witnesses were not credible witnesses within the meaning of the act: Kessler’s Est., 221 Pa. 314; Paxson’s Est., 221 Pa. 98; Irvine’s Est., 206 Pa. 1; Beswick’s Est., 13 Pa. Dist. Rep. 711.
    The attesting witnesses to a will containing charitable bequests must be disinterested at the time of the probate as well as at the time of its execution: Snyder v. Bull, 17 Pa. 54; Kessler’s Est., 221 Pa. 314.

      James M. Lamberton, with him Nead & Nead, for appellee,
    cited: Price v. Maxwell, 28 Pa. 23; Lillibridge’s Est., 221 Pa. 5.
   Opinion by

Mr. Justice Stewart,

Two questions are sought to be raised by this appeal, both of which have been so conclusively adjudicated that we need only to state them and refer to the authorities which govern. First, is an attesting witness to a will containing a charitable devise or bequest, who at the time of signing was without knowledge that the instrument that he was attesting was a will, a credible witness under the requirements of the Act of April 26,1855, P. L. 328? Second, must such witness be without interest at the time probate is asked for, as well as at the time of attestation? A credible witness is one who is not disqualified to testify by mental incapacity, crime, or other cause: Combs and Hankinson’s App., 105 Pa. 155. An attesting witness under the act means a subscribing witness: Paxson’s Est., 221 Pa. 98. The chief purpose in subscribing is to identify the instrument; not necessarily as a will, since the paper must speak for itself, but as the particular instrument which the subscribers saw the maker execute. “Therefore, it is not essential in any case to the probate of a will, to prove more by the witnesses who were present at its execution, than the identity of the instrument, that they saw the testator subscribe or make his mark, and at the time of doing thereof he was of sound, disposing mind, memory and understanding:” Combs and Hankinson’s App., 105 Pa. 155. “If it be that a bequest for a charitable use is void unless the witnesses subscribe the will, the statute does not require that the testator shall declare to the witnesses that the instrument in his will, or that he communicate to them its contents:” Combs and Hankinson’s App., supra. In'the present case it is admitted that the subscribing witnesses were credible, — except as disqualified by interest, a subject for consideration in the answer to the second question, — that they sufficiently identify the instrument, and that they were requested by the testator to attest his execution of it. This meets every require-' ment of the statute except that which makes it essential that the witnesses be disinterested.

The argument in support of the proposition that the, witnesses must be disinterested as well at the time of the probate as at the time of the execution of the instrument, proceeds on a clear misapprehension of what was said in Paxson’s App., supra. We quote from the opinion in that case: “Nothing is easier than to antedate a writing, whether a deed or will, and the statute guarded against that danger by the requirement that it should be not merely proved, but ‘attested’ by two witnesses, and those two must be ‘at the time disinterested.’ At what time? Certainly not merely at the time of probate, for that was the general rule under the act of 1833, and did not need any re-enactment. Those whose memory goes further back than the evidence act of 1887 will recall the amount of time and argument spent over questions of the interest of witnesses, and whether the interest had been or could be released. The act closed all controversy on this point by the requirement that the witnesses should be disinterested ‘at the time.’ At what time? Clearly at the time the instrument was executed in the manner required by the statute.” The words, “certainly not merely at the time of the probate, for that was the general rule under the act of 1883, and did not need any re-enactment, ” as they here occur, are seized upon as giving rise to an implication that the witness must, in order to be qualified, be disinterested both when the instrument is executed and when probated. No such meaning was intended, and it requires ingenuity to extract any such implication. The reference is to conditions existing when the act of 1855 was passed. Prior to the act of 1855 a subscribing witness to a will who was a beneficiary thereunder was incompetent to testify in connection with the probate, not, however, because of anything in any statute relating to wills, but by reason of a general rule of evidence which excluded from the stand anyone having pecuniary interest in the matter in controversy. The act of 1855 had no effect whatever upon this rule; it remained operative after the act as before. The disqualification under the rule had relation to the time when the person was called to testify. No matter how much he had been interested before, if he had in fact divested himself of that interest when called to testify, he was competent. The act imposed another and wholly distinct disability, not in any way affecting the disability under the general rule, namely, a disability in consequence of having an interest at the time of execution of the instrument. So that after the passage of the act, where a subscribing witness having an interest under the will was called to prove the will, even though that interest had been divested, he remained disqualified notwithstanding. The language of the act is “ at the time disinterested.” Was any other time meant by this than that contemplated in the general rule? This was the question put in the opinion, and the answer was, — certainly another time was meant; the purpose of the act could not have been merely to give legislative sanction to the general rule; it clearly defined a disability reaching further back than the time when the party was called to testify. Giving to the expression “not merely” the significance for which the appellant contends, that it is the equivalent of “not only,” it expresses exactly the thought intended to be conveyed, and the law as it stood at the time of the passage of the act of 1855. The general rule which excluded a witness on ground of interest, was deemed inadequate in view of the purpose of the act, and a certain positive disqualification was defined which would operate to exclude in cases where by reason of divestiture of interest, before the party was called to testify, the general rule would fail to operate. The opinion is clear of all possible obscurity, and the decision is directly to the point that the time of qualification of the witnesses must be referred to the time of the execution of the will.

It is conceded that when this will was executed and attested, the subscribing witnesses were wholly without interest. Five months after its execution the testator added a codicil, unattested, in which he gave legacies to the witnesses who had previously attested the will. By the act of 1887, disqualification on account of interest in such cases had been removed. These parties therefore stood clear of all disqualification by reason of interest, except as the act of 1855 interfered. But under that act the disqualification by reason of interest must arise in connection with the factum, otherwise it does not exist. When the will which they attested was executed they were without any interest in or under that will, and were therefore competent.

Judgment affirmed.