author: Mr. Justice Stewart,

text:
    Dill v. Westbrook, Appellant.

      Statute of frauds — Gift—Real estate — Evidence.
    1. Where an attempt is made to set up a parol gift of real estate by a father to a son, the evidence to sustain the gift must be direct, positive, express and unambiguous. If not a single witness testifies that he was present when the gift was made, or that he heard it spoken of between the father and son, or brings the father and son together face to face with respect to the transaction, and there is nothing in evidence but loose declarations made by the father to the effect that he had turned over his property to his son, and that he himself had nothing to do with it, and there is no evidence that the son had made improvements on the property out of his own funds, the alleged gift will not be sustained.

      Statute of limitations — Adverse possession — Admission of title.

    2. If an occupant of land admits in writing that the land on which he lives belongs to another, it is a voluntary submission to the title of the other, and a surrender of any rights acquired by a prior possession. Nothing can more effectually interrupt the running of the statute than an express acknowledgment of the owner’s title.
    Argued Oct. 12, 1909.
    Appeal, No. 52, Oct. T., 1909, by plaintiffs, from judgment of C. P. Indiana Co., June T., 1907, No. 84, on verdict for plaintiffs in case of Benson S. Dill, Samuel O. Dill, George S. Dill, Jennie Dill, Mary Ann Ruttinger and Frank Ruttinger, her husband, Amanda Tomb, Lizzie Buchman and Arnold Buchman, her husband, and Samuel O. Dill, Devisee under the Will of Anson J. Dill, deceased, Devisees of Matthew Dill, deceased, v. Laura M. Westbrook and Nathan B. Westbrook, her husband, Harry R. Dill, Lizzie R. Stewart and William G. Stewart, her husband, Rose L. Dill, John Lowman, Bertha Lowman, Roy L. Lowman, Mary Low-man, Helen Lowman, Minors, Rose Lowman, Minor, John Lowman, Jr., Minor,' and H. M. Lowman, Guardian of the above-named Minors.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Ejectment for land in townships of Buffington and Brush Valley. Before Telford, P. J.
    The facts are stated in the opinion of the Supreme Court.
    The court charged as follows:
    Matthew Dill acquired the title to a large tract of land situated in Buffington township, this county. This tract of land comprised several — three, I believe — adjoining tracts. These tracts have been referred to in this trial as the Mansion House farm, the Reever farm, and the Carnahan farm. There is no dispute about the title to the Mansion House farm; that farm has nothing to do with this case. The controversy is about the tracts adjoining and known as the Reever tract and the Carnahan tract, the latter being sometimes referred to as the Marsh farm.
    The plaintiffs contend that in 1847 Matthew Dill died seized of these lands; that is, that he owned them at that time. Having them in his possession and control he made a will, which bears date, I believe, April 13, 1845, by which he devised his homestead farm to his wife, Mary, for life; devised all his real estate to his son George for his life and after the death of George to his other son, James C. Dill, for his life, and at his death to the children of his two sons, George and James, share and share alike. Mary Dill — it is in evidence, I believe — died about 1870; James Dill in 1885, and George Dill in 1906. The plaintiffs, who are the children of George Dill, have brought this action to recover eight-fourteenths undivided part of the Reever and Carnahan tracts, containing some 500 or 600 acres of land. Their right to this interest in these tracts of land is denied by the defendants, who are in possession, and who are the children and grandchildren of James C. Dill, and who were devisees under the will, share and share alike, with the children of George Dill.
    Matthew Dill being agreed as the common source of title from whom both plaintiffs and defendants claim, it has not been necessary to go back of his title in this controversy; and so the plaintiffs, showing his death, have offered his will and the probate thereof, by which will George Dill, his son,-was given a life interest in all the real estate of which he died seized, and at his death James C. Dill was given a life interest, and at his death the children of George and James C. Dill were to receive the remainder, share and share alike. The plaintiffs have shown the death of James C. Dill in 1885, as I have stated, and the death of George Dill in 1906. That the children of George Dill are eight in number, and are represented here as plaintiffs. That the children of James C. Dill were six in number, and are all represented by the defendants. The plaintiffs having made this prima facie case are entitled to recover a judgment for eight-fourteenths of the lands in controversy, unless there is a reason shown against it.
    The defendants do not deny these allegations of the plaintiffs, except in that they say that Matthew Dill did not die seized of the .Reever and Carnahan tracts, but that in 1845 or 1846 Matthew Dill gave these tracts to his son George and that when he died in 1847, about two years afterwards, he did not own this land, and hence his will gave no title to it. It is alleged that this gift by Matthew Dill to his son George was a verbal gift; that there was no writing to evidence it.
    In Pennsylvania real estate cannot pass from one to another in this way. There must be some written evidence of a gift or sale. But when a parol gift is fully executed by the delivery of possession, and followed by valuable improvements made upon the premises, a title will stand, notwithstanding the statute of frauds and perjuries, which requires written evidence. This is so in the case of a gift from a parent to a child as well as between strangers. Such gifts, however, must be established by such proof as is credible; it must be of such weight and directness as to make out the facts alleged beyond doubt; and further, in case of a gift from a parent to a child, the parties must be brought face to face in the making or in the rehearsal of the gift.
    In order to sustain this alleged parol grant by Matthew Dill to George Dill in 1845 or 1846 evidence has been submitted by the defendants. The testimony of four of the witnesses for the defense who are now dead was taken in 1850, before an examiner appointed by the court. This evidence was preserved in the court and has been produced and read in your hearing. A fifth witness, still living, has been upon the stand. The testimony of these five witnesses — -Benedict Marsh, Samuel Conrad, William Conrad, Alexander Patterson, and William R. Dolce — has been so recently and so fully presented to you by counsel in their argument that we will not now pause to call your attention again to it. It is for you to recall and pass upon in determining your verdict.. It is for you to decide under the law what weight shall be given to this evidence.
    Following this proof offered in support of the gift the defendants have presented the deed of George Dill and wife, by which for a consideration of $2,500 he conveyed the land in controversy, and which was the alleged subject of the parol gift, to James C. Dill, the father of the defendants, and from whom upon his death they inherit. Upon the presentation of these proofs the defendants contend they should have a verdict.
    I have stated that a father may give to his son land by a verbal contract. Such a parol gift may be supported by evidence of the declarations and confessions of the father alone. But this character of evidence has been declared by the courts to be unsatisfactory on account of the facility with which it may be fabricated and the impossibility of contradicting it and the mistakes and failures of recollection. And so it is required of you that you shall scrutinize this testimony and exercise your judgment in determining the weight which you should give it. Considering the evidence in this case relating to this alleged parol contract, it must be found to be free from doubt. As between a father and a son the existence of the family relation requires that you should interpret the use and possession of the father’s real estate by the child differently from similar actions between strangers.
    The evidence of the gift or sale must be express, positive and unambiguous, and its terms must be clearly defined; and all the acts necessary to its validity must have special reference to it and nothing else. If the gift is in parol it must be an unqualified parol gift, and there must be the taking and maintaining of exclusive possession thereunder and the making of valuable improvements in the land.
    You will recall the evidence in regard to the deed from George Dill to James C. Dill in 1855. You will recall that following the description of the land in that deed the following clause appears: “Which said tracts of land became duly vested in the said George Dill by law, a reference being had to the records of Indiana county and the last will and testament of Matthew Dill, deceased, will more fully and at large appear.” Now, this clause can only be viewed as á reference by George Dill to the source from which he derived the title to the lands which he conveyed, which he acknowledges to be in part by the will of Matthew Dill. If this admission and confession is to be taken as a true statement of the fact and James C. Dill accepted the deed with this understanding, then George Dill had. only a life interest in the lands and James C. Dill acquired only that life interest; and upon George Dill’s death in 1906, James C. Dill being also then deceased, the plaintiffs were entitled to eight-fourteenths of this land. You will consider this evidence in connection with other evidence bearing on the existence of this parol contract, and give to it such weight as you may believe it entitled to have.
    Verdict and judgment for plaintiffs for the undivided eight-fourteenths of the land described in the writ.

      Error assigned among others was the charge of the court, quoting it.

      January 3, 1910:

      M. B. Stephens and Samuel Cunningham, with them John S. Fisher, Ernest Stewart and John H. Stephens, for appellants.—
    We contend that the statute of limitations began to run at the time George Dill entered upon the said land, which was in the lifetime of Matthew Dill, and the court should have given the benefit of this point to the defendants, with full instructions to the jury as to the effect of the statute of limitations in this case: Williams v. Beam, 196 Pa. 341; Campbell v. Braden, 96 Pa. 388; Ewing v. Ewing, 96 Pa. 381; Moreland v. Moreland, 121 Pa. 573.
    There was sufficient evidence of a gift: Hart v. Carroll, 85 Pa. 508; Brewer v. Lohr, 35 Pa. Superior Ct. 461; Aitkins’ Heirs v. Young, 12 Pa. 15; Williams v. Beam, 196 Pa. 341; Baldridge v. McFarland, 26 Pa. 338.

      J. Wood Clark and F. L. Williams, with them C. C. Coleman and John A. Scott, for appellees.
    One accepting a benefit under a will is estopped from asserting a claim repugnant to its provisions: Cox v. Rogers, 77 Pa. 160; Cox v. Cox, 26 Pa. 375; Machemer’s Est., 140 Pa. 544; Zimmerman v. Lebo, 151 Pa. 345; Cummings’s Est., 153 Pa. 397; Miller’s Est., 159 Pa. 574, 575; Stump v. Findlay, 2 Rawle, 168.
    The following authorities are cited on the proposition that the parties to a deed and those holding under them may not dispute the recitals in such deed: Scott v. Douglass, 7 Ohio Reports, 227; Jackson v. Ireland, 3 Wendell, 99; Jackson v. Thompson, 6 Cowen, 178; Olwine v. Holman, 23 Pa. 279; Rankin v. Simpson, 19 Pa. 471.
   Opinion by

Mr. Justice Stewart,

This was an action of ejectment for certain undivided interests in two adjoining tracts of land containing together 564 acres, in Buffington township, Indiana county. All parties to the controversy claimed under and through Matthew Dill, who died in 1847. Plaintiffs are the children of George Dill, son of Matthew, to whom was devised a life estate in the land upon the death of the widow, with remainder, upon the death of both George and James Dill — the latter also a son of Matthew, and given a life estate upon the death of George — to the children of George and James jointly. The defendants are the children of James, who claimed to hold under a deed to James from his brother George, who they assert derived title to the land by parol gift from his father several years before the latter’s death. The will of Matthew Dill bears date April 3, 1845, and the item in it bearing on the controversy is as follows : “ I give and bequeath to my son George Dill after the death of his mother, all my real estate, for life, and at his death, to James C. Dill for life; and after the decease of George and James Dill, to their children, share and share alike.” Plaintiffs having shown the death of both George and James, rested their case on the devise contained in the will. The defense set up was twofold: first, the alleged parol gift from Matthew to George; and, second, adverse possession for more than twenty-one years before the bringing of the suit. On neither of these propositions, as we shall show, were defendants entitled to go to the jury. Since they had the benefit of a submission on both, and lost on both, it will be unnecessary for us to consider any of the twenty-five assignments of error which confront us in this appeal. The discussion may be confined to the single question of the sufficiency of the evidence adduced by the defendants to raise an issue of fact on either of the positions taken.

In 1850, three years after the death of his father, George Dill instituted proceedings to perpetuate testimony in support of a claim he then made that his father had given him the land. The testimony of four witnesses, all since dead, was taken, and this testimony was offered and admitted on the trial of the present case. It was supplemented by the testimony of a single living witness. It will be sufficient to indicate briefly the facts appearing in the testimony which were relied upon to establish the gift. Benedict Marsh testified that he was the tenant on one of the tracts in dispute during the last few years of Matthew Dill’s life; that he had several interviews with him in regard to leasing the premises; that on the last occasion he found him sick in bed,.and when he made known his business the old man said, quoting the words of the witness, that he had nothing at all more to do with it, for he had thrown it all into his son George's hands, for him (George) to do with it as he pleased, adding, “ just as you and him make your bargain I am willing to abide by it.” Further on this witness says that he received the lease from George, had continued in the occupancy of the leased premises until the time he testified, and that he had made certain improvements thereon. Samuel Conrad testified that Matthew Dill, a few months before his death complained to him that George was requiring Marsh (the first witness, lessee of one of the tracts) to pay tax on too much of the land.;, that he thought George should pay taxes on 100 acres of the tract in relief of Marsh, inasmuch as George had certain advantages on the tract that Marsh had not; that he had talked to George about it but that he would give him no satisfaction. The old man requested the witness to speak to George in regard to it, saying in this connection that for his part he had nothing at all to do with it, that he had given it to George, that it was all in his hands, and that he would like him to do what was right. This witness also testified to improvements made by Marsh which had enhanced the value of the property. Alexander Patterson testified that in 1844 he rented from Matthew Dill a house on one of the disputed tracts; that in the spring of 1846 he applied for a renewal of his lease and Matthew told him that if he wanted to rent the place again he would have to rent it from George; that he had given it to George, and that he had nothing to do with it; that he had given the Reever tract to George. William Doke testified that after Patterson had vacated the premises he leased them from George Dill, and that while he was there George had erected a barn on the tract. William S. Conrad testified to a conversation he heard between Matthew Dill and his father, which in substance and effect was the same as that testified to by Samuel Conrad, the previous witness. While what we have thus given is an abridgement of the testimony, it omits nothing that could have any bearing on the one question before us. Its insufficiency to overcome the bar of the statute of frauds and perjuries is apparent. When such an attempt is made, it is necessary, first, to establish the gift or contract by direct, positive, express and unambiguous evidence; and, second, the gift established, to show a case within the equities of the statute. “When an attempt is made to set up a parol contract of sale against a father either by his son, or one claiming under' the son, the evidence of the contract must be direct, positive, express and unambiguous. Not only must the terms and conditions of the contract and its substance be well and clearly defined, but it has been held, that the contracting parties must be brought together face to face. The witnesses must have heard the bargain when it was made, or must have heard the parties repeat it in each other’s presence. A contract is not to be inferred from the declaration of one of the parties:” Ackerman v. Fisher, 57 Pa. 457. “ In no case can a parol conveyance of land be taken out of the statute of frauds, but by a particular equity arising from the payment of purchase money, or, what is much the same, expenditure in improvements made with money of the donee, of which it would be a fraud in a donor to deprive him; and such an equity cannot be contended by a volunteer. A parol gift to a son, which has induced no such expenditure, is as much within the statute as if it were to a stranger:” Eckert v. Mace, 3 P. & W. 364, note. The evidence falls far short of either of these requirements. With respect to the gift itself, not a single witness testified that he was present when any gift was made; not one testifies to having heard it spoken of between father and son; no witness brings them together face to face with respect to the transaction. We have nothing but loose declarations made by the father to the effect that he had turned over the property to George, and that he himself had nothing to do with it; but never an admission of an obligation or engagement on his part to vest the title in George either in his lifetime or at his death. If the conversations testified to can be construed into so many acknowledgments that he had made a gift of the property to George, they are certainly open to a very different construction consistent with the old man’s continued ownership. Especially would this be so if the situation and circumstances be considered in connection therewith. At the time he made these declarations Matthew Dill was an old man and had laid aside the cares of business. He was making his home with his son George who was farming the Mansion place, and who, according to the testimony of these very witnesses, was having in his charge the general management of his father’s affairs. What more natural than that under such circumstances he should intrust to George the selection of tenants for his other several tracts of land, the looking after their leases, and attending generally to the business in connection with the farms. A fair and natural construction of the admissions testified to would give them no larger meaning than that the old man had turned over the property to George to manage as his agent. Certainly such construction is quite as natural and reasonable as the other that is contended for. It would be waste of time to enlarge further on this branch of the case. The giving was not witnessed by anyone; whether it was ever made, is at best left in uncertainty; if made, nothing appears as to what, if any, conditions were annexed, or what, if anything, was engaged to be done to give it effect. Nor is it shown that possession was ever taken pursuant to the alleged gift. “It is not alone sufficient for the party claiming the benefit of a parol contract to prove that he is in possession of the premises; but in addition to distinct and satisfactory proof of the contract, he must prove most clearly that he took the exclusive possession in consequence and in pursuance of the contract. Of this latter requisite there should not be a shadow of doubt resting upon the mind of either court or jury:” Robertson v. Robertson, 9 Watts, 32. But assuming the gift to have been established, what equity has been shown to overcome the statute? At the time, George was in possession of the home farm as tenant. Suppose the possession by the tenants to whom he leased the lands in dispute was his possession, and suppose further that improvements were made during their tenancy, at whose expense were these improvements made? It will not do to say that an inference arises that George contributed the money. Such fact, if it be a fact, must affirmatively appear, otherwise no equity which would call for an enforcement of the contract can arise. Here again the evidence falls short.

With respect to the other branch of the case it is only necessary to call attention to the recitals in the deed from George to James Dill, dated June 14, 1855. This deed purports to convey a fee simple in the disputed tract. Aside from the matter of the parol gift, George under his father’s will had a life estate in the land, and this interest of his certainly passed by the conveyance. Any adverse possession on part of George to avail here must have commenced in the lifetime of Matthew Dill. It is alleged that it did then commence, and it is claimed that the possession under George’s deed to James tacked to George’s earlier possession. Now, while it is true that as early as 1850, three years after his father’s death, George was in possession and was then claiming to hold adversely, yet from his deed to James, the deed under which defendants claim, it clearly appears that he had abandoned such adverse claim and was asserting a title derived under his father’s will. Following a description by metes and bounds of the land conveyed — the subject of the present controversy — this occurs in the deed: “Being two tracts combined together. And the one being surveyed to Alex. Carnahan and Edward Hanna on a warrant bearing date 3 May, 1798, and the other surveyed to Alex. Carnahan on warrant dated 26 March, 1799, which said tracts of land became duly vested in the said George Dill by law, a reference being had to records of Indiana county and the last will and testament of Matthew Dill, deceased, will more fully and at large appear.” There is no mistaking the significance of this recital. It is a clear, unequivocal declaration that the grantor was then holding under the will of his father, and not by virtue of any contract of gift or sale. It was a positive disclaimer and abandonment of his adverse holding, and broke forever the running of the statute of limitations which it is claimed had begun in his father’s lifetime. It is a settled principle that if the occupant of land admits in writing the land on which he lives belongs to another, it is a voluntary submission to the title of the other, and a surrender of any rights acquired by a prior possession. Nothing can more effectually interrupt the running of the statute than an express acknowledgment of the owner’s title. So much is ruled in Miller v. Keene, 5 Watts, 348; Criswell v. Altemus, 7 Watts, 565; Sailor v. Hertzogg, 2 Pa. 182; Ingersoll v. Lewis, 11 Pa. 212.

A verdict for the defendants on either ground set up could not have been sustained, and the case therefore called for binding instructions.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Brown,

license: Public Domain

text:
    McGara v. Ake, Appellant.

      Contract — Joint contract — A ction — Parties,
    Where three persons make a joint contract of sale, one of them cannot, either in his own name, or in the name of the three to his own use, maintain an action to recover one-third of the purchase money.
    Argued Oct. 12, 1909.
    Appeal, No. 87, Oct. T., 1909, by defendants from judgment of C. P. Indiana Co., June T., 1906, No. 189, on verdict for plaintiff in case of E. B. McGara, D. M. Smith and D. W. Krytzer, for the use of E. B. McGara, v. James D. Ake, H. E. Clark, J. O. Clark, who survive J. H. Engle, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Assumpsit to recover one-third of the purchase money on a contract for the sale of options on coal land. Before Tel-ford, P. J.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for plaintiff for $2,175.85. Defendant appealed.

      Error assigned was (7) in refusing to enter judgment for defendants non obstante veredicto.

      Frank Keener, with him D. B. Taylor, for appellants.

      J. N. Banks, with him John L. Getty, for appellee.

      January 3, 1910:
   Opinion by

Mr. Justice Brown,

On August 23, 1902, David W. Krytzer, E. B. McGara and D. M. Smith, as parties of the first part, entered into a written contract with James D. Ake, H. E. Clark, J. O. Clark and J. H. Engle, as parties of the second part, by which they agreed to transfer to the said parties of the second part contracts or options which they held for the purchase of coal lands. The contract was clearly a joint one. By its terms the parties of the second part agreed to pay to the parties of the first part 16,000 for the transfer of the options by them jointly. There was no agreement that each of the parties of the first part should receive one-third of the consideration. The whole of it was to be paid to them jointly. McGara, the appellee, one of the parties of the first part, brought this suit originally in his own name as the legal plaintiff, to recover one-third of the amount due for the options that had been transferred. Subsequently, on his motion, there was an amendment by which E. B. McGara, D. M. Smith and D. W. Krytzer, for the use of the said E. B. McGara, became the plaintiffs, and the case was so tried. The statement shows that the suit by the parties of the first part to the contract, as the legal plaintiffs, is for the recovery by the use plaintiff of one-third of the sum to be paid by the parties of the second part. On the trial objection was made that, as the contract sued upon was a joint one, the use plaintiff was not entitled to recover the one-third of the contract price for the options. The court reserved this question, and, in disposing of the motion of the defendants for judgment n. o. v., held that the objection was not well taken. From the judgment entered for the plaihtiff on the verdict we have this appeal, which orderly pleading requires us to sustain.

If the written contract had been so modified by the parties to it that the liability of the parties of the second part became, with their consent, one to pay each of the three parties of the first part the one-third of the contract price, each of the said parties could have brought a separate action, and this is what the appellee originally did. But he chose to not so proceed and substituted as the legal plaintiffs the three parties who were the joint vendors of the options. If he is to recover at all in this action as the use plaintiff, he can recover only what the legal plaintiffs could recover. What they could recover is what is payable to them jointly, not severally, and there is no rule of pleading that permits them to bring, as joint obligees, a separate suit for what may be due to each one of them out of the fund to which they may be jointly entitled. What they have a right to sue for jointly is for what is due them jointly. The right of the appellee as the use plaintiff to recover is founded upon and limited to a claim they might jointly enforce. It is not pretended that there was any agreement by which they jointly could enforce in three separate actions the payment of three separate claims, and yet this is what has been attempted by the appellee in his amended action. That the appellants may have settled with Smith, one of the joint vendors, in a separate suit brought by him, is no reason why their objection now made to this disorderly pleading should not be sustained.

The seventh assignment of error is sustained, the judgment is reversed and is now entered for the defendants non obstante veredicto.


author: Mr. Justice Elkin,

text:
    Sontum v. Mahoning & Shenango Railway, etc., Company, Appellant.

      Negligence — Death—Parties—Amendment—Parent and child.

    1. Where an action is brought in proper form by a father to recover damages for the death of his son caused by the negligence of another, and it appears from the record that the son died within a few hours after the accident, and was unmarried, the record may be amended after the expiration of one year from the death of the son by adding the name of the mother as a party plaintiff.

      Negligence — Street railways — Death—Crossing tracks.

    2. Failure to look immediately before driving upon the tracks of a street railway is negligence per se.
    3. "Where it clearly appears from the testimony that a person killed in crossing the tracks of a street railway failed to look for an approaching car as he reached the edge of the track, contributory negligence is established as a matter of law and binding instructions for the defendant are proper, but where there is no positive testimony upon this material fact the presumption is that the decedent did his duty as he approached the tracks.
    Argued Oct. 13, 1909.
    Appeal, No. 146, Oct. T., 1909, by defendants, from judgment of C. P. Lawrence Co., June T., 1907, No. 72, on verdict for plaintiffs in case of Hugo Sontum and Anna M. Sontum, his wife, v. Mahoning & Shenango Railway & Light Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiffs’ son. Before Porter, P. J.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for plaintiffs for $4,106.85. Defendants appealed.

      Errors assigned were (1) allowance of amendment and (7) refusal of binding instruction for defendants.

      C. H. Akens, of Akens, Wilkison, Lockhart & Chambers, for appellants.
    At the time the amendment was allowed there was no declaration or statement on file. The court had the petition and answer only before it. The petition did not show that the parents were entitled to maintain the action, as it failed to aver that no suit for damages had been brought by the deceased in his lifetime, or that he left no widow or children to survive him: Birch et al., Exrs., v. Ry. Co., 165 Pa. 339; Taylor’s Est., Birch’s App., 179 Pa. 254; Black v. R. R. Co., 18 Pa. Dist. Rep. 66.
    This presumption is to the effect that the driver did whatever an ordinarily prudent man would do in such a situation, and it does not arise in cases where there are facts and circumstances in evidence indicating what the driver actually did do: Schum v. Pennsylvania R. R. Co., 107 Pa. 8, 12; Los Angeles Trac. Co. v. Conneally, 136 Fed. Repr. 104; Salyers v. Monroe, 104 Iowa, 74; Smith v. R. R. Co. (N. D.), 53 N. W. Repr. 173; Volkman v. R. R. Co. (N. D.), 37 N. W. Repr. 731; Huber v. R. R. Co. (N. D.), 43 N. W. Repr. 819.
    January 3, 1910:

      J. Clyde Güfillan and Robert K. Aiken, for appellees.-
    The first assignment of error relates to the amendment wherein the court permitted Anna M. Sontum, the wife, to be made a party claimant with her husband, Hugo Sontum. The question involved in this assignment of error has been so clearly and recently ruled by this court that argument would seem unnecessary: Holmes v. R. R. Co., 220 Pa. 189; Bracken v. R. R. Co., 222 Pa. 410; Waltz v. Penna. R. R. Co., 216 Pa. 165.
    The accident occurred at a public street crossing in the city, and known to the deceased to be such. The law in such a case is, that at a regular street crossing one is not bound to stop even if a car is in sight. If the car is at such a distance that he has ample time to cross, if the car ran at its usual speed, it cannot be said as a matter of law that one is negligent in proceeding: Callahan v. Phila. Traction Co., 184 Pa. 425; Hamilton v. Traction Co., 201 Pa. 351; Raulston v. Traction Co., 13 Pa. Superior Ct. 412; Henderson v. Traction Co., 202 Pa. 527.
   Opinion by

Mr. Justice Elkin,

This suit was brought within the statutory period by the father while the name of the mother was added by amendment more than a year after the expiration of the time in which the action must be instituted under the statutes. The first assignment challenges the correctness of the ruling of the court in permitting the amendment. The right to add the name of a husband, or of a wife, by way of amendment after the expiration of the statutory period, if either one had properly brought suit within the time limited, is no longer an open question. It has been squarely ruled in several recent cases: Waltz v. R. R. Co., 216 Pa. 165; Holmes v. R. R. Co., 220 Pa. 189; Bracken v. R. R. Co., 222 Pa. 410.

This is conceded by the learned counsel for appellant, but it is argued with great subtleness that the rule of these cases cannot be invoked under the facts of the case at bar. It is contended that the parents had no right of action unless it appears thát the death of the son was occasioned by unlawful violence or negligence; that no suit had been brought by him in his lifetime; that the deceased did not leave a widow or children to survive him; that suit was brought by the parents within one year from the death of the son; and that no liability attached to the defendant company until action was brought in such manner and upon such conditions as the statutes require. In other words, that it is the duty of the pleader to set out all of these things in affirmative averments as the foundation of the suit and to establish them by positive testimony at the trial. We are not familiar with any case that has stated the rule so broadly. The record shows that the suit was brought within a year and the declaration charges negligence. The son was unmarried and had no wife or children, and his death having resulted within a few hours after the accident suit could not have been brought by him in his lifetime. All of these things sufficiently appear by the record, and it would be sticking in the bark to hold that more is required. Wo are of opinion, therefore, that in the institution of the suit and the joinder of the parents no error was committed and that the requirements of the statutes in these respects were complied with. As to the adequacy of the charge and the instructions to the jury about which complaint is made in the second, third, fourth, fifth and sixth assignments, we are not convinced that any substantial and reversible error was committed. Indeed, the charge shows careful and thoughtful consideration of the questions raised and the law applicable to the facts. The objections made as to the definition of negligence and the measure of damages are too refined to be substantial in the practical administration of the law. The seventh assignment is the only one about which we have any doubt. The error alleged is that the court upon request did not give binding instructions for the defendant on the ground that the deceased son failed to look immediately before driving upon the tracks. This is an imperative rule, and failure to observe it is negligence per se. If it clearly appeared from the testimony that the decedent had failed to look for an approaching car as he reached the edge of the track it would be our duty to sustain this assignment and enter judgment for'defendant. There is no positive testimony upon this very material fact, and while there is some evidence from which a strong inference might be drawn that the driver did not look it was not so clear as to warrant the court in saying as a matter of law that he had failed in the performance of this imperative duty. The presumption in the absence of evidence is that the driver did his duty as he approached the tracks, and we have concluded after very careful consideration of all the testimony relating to this material fact that the case is not so clear as to warrant the court in taking it from the jury. In other words, the presumption upon which the appellants had a right to rely was not sufficiently rebutted to make it a question of law for the court and not of fact for the jury.

Under these circumstances the case was for the jury, and we find no reversible error in the submission.

Judgment affirmed.


text:
    Wirsing v. Pennsylvania Hotel & Sanitarium Company.

      Mechanics’ liens — Curtilage—Separated lots.

    1. By the Act of June 4, 1901, P. L. 431, curtilage, to be regarded as appurtenant to a building and bound by a mechanic’s lien filed against it, is “such as is reasonably needed for the general purpose” for which the structure is erected, and belongs to the same owner. As a rule, curtilage does not extend beyond the lot on which the building is erected, but when more land is reasonably needed for the general purpose of the structure and at the time the same is being erected the owner of it intends that another lot in addition to the one on which it is being built shall be included in the curtilage and constitute a part of the same, it is reasonable that a mechanic’s lien should extend to both.
    2. A mechanic’s lien may be maintained against a hotel property and a lot separated from the hotel by a railroad and intervening private lands, where it appears that on the lot was a mineral spring, and that it was the intention of the owners to use the hotel in connection with the spring as a sanitarium, and to construct on the lot where the spring was situated a plant for supplying light and heat to the hotel.
    Argued Oct. 13, 1909.
    January 3, 1910:
    Appeal, No. 151, Oct. T., 1909, by The Southside Trust Company of Pittsburg, Trustee in Bankruptcy for Pulaski Springs Hotel Company, Successor in Title to the Pennsylvania Hotel & Sanitarium Company, Owner, from order of C. P. Lawrence Co., Sept. T., 1908, No. 13, dismissing petition to limit and define curtilage in case of Harry M. Wirsing v. Pennsylvania Hotel & Sanitarium Company, Owner or Reputed Owner.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Petition to limit and define curtilage. Before Porter, P. J.
    The opinion of the Supreme Court states the facts of the case.

      Error assigned was order dismissing the petition.

      W. D. Wallace, with him Wm. McElwee, Jr., G. W. Williams and A. J. Edwards, for appellant,
    cited: Worthington v. Cambridge Springs Hotel Co., 24 Pa. C. C. Rep. 281.

      Robert K. Aiken, for appellee.
   Opinion by

Mr. Justice Brown,

On June 12, 1906, Harry M. Wirsing, the appellee, filed a mechanic’s lien against a building and two lots of ground, naming the Pennsylvania Hotel & Sanitarium Company as owner or reputed owner. He obtained a judgment on this lien on June 3, 1908, and on March 3, 1909, the South Side Trust Company, trustee in bankruptcy of the Pulaski Springs Hotel Company, successor in title to the Pennsylvania Hotel & Sanitarium Company, presented a petition to the court below, praying for an order limiting and defining the curtilage bound by the appellee’s mechanic’s lien and the judgment thereon. The two lots of ground against which the lien was filed as curtilage to the building are separated by a railroad and private properties and are distant from each other about 225 feet. The contention of the appellant is that the curtilage should be confined to land embraced in the lot on which the building was to be erected. Under the existing conditions the court below held otherwise, and this appeal comes from the dismissal of the petition.

The answer to the petition, to which no replication was filed, avers that at the time the appellee entered into the contract with the Pennsylvania Hotel & Sanitarium Company on which his claim is founded it was the owner of the two lots described in the lien, on one of which there is located a spring or well of water; that on this lot there were buildings, a boiler, etc., and in connection therewith the said company proposed to erect and construct a large sanitarium or hotel; that the said sanitarium or hotel was to be used in connection with the said spring or well of water; that it was the purpose and design of the company to heat and light the hotel from a heating and power system on the lot on which the spring was located and to supply the hotel or sanitarium with water from said well or spring, which possessed medicinal properties; that it was planned, arranged and intended by the company that the two lots should constitute the curtilage appurtenant to the hotel and sanitarium, and they were such as were reasonably needed for the general purpose for which the said hotel or sanitarium was being constructed; that each of said lots formed a part of the single business plant of the company and constituted the curtilage appurtenant to the hotel or sanitarium; that it was planned, arranged and intended by the company to connect the lot on which said well or spring was located and the buildings thereon with the lot on which the said hotel or sanitarium was to be erected; that in pursuance of instructions given him by the company, the appellee made his plans to connect said lots; that the entire property became and was a single business plant; that the two lots had been purchased by the company for the purpose of a single business plant; and that the said hotel or sanitarium, as planned, arranged and intended by the company, would have no value except in connection with the spring which was located but a short distance from it. The only witness called by the appellant in support of its petition admitted that the two lots were deeded at the same time to the Pennsylvania Hotel & Sanitarium Company, which had been organized for the purpose of conducting a hotel with the spring in connection with it, and that the running of the hotel in connection with the spring constituted one single undertaking on the part of the company. From the testimony of this witness and that of the appellee, considered in connection with the averments in the answer, the court below found the following facts, to which no exceptions were filed: “The hotel was to be connected with a boiler house to be located on the spring property by an eight inch and other pipes through which the heating plant in the hotel was to be supplied with hot water. It seems the hotel building was to be constructed for the use chiefly of those who came to receive benefit from the use of the medicinal water of the spring, and the spring property and the hotel property were to be operated and managed by the same person. Without the spring the hotel property would be of comparatively little value, but operated together the patronage was expected to be quite large. ... It was clearly the purpose of the owner of these parcels of land to use them in connection with each other; the hotel was for the accommodation of those who desired treatment and to enjoy the beneficial results derived from the use of the medicinal waters of the spring located on the spring property. Pipes were to be extended under ground from one to the other and both properties were to be operated, managed and controlled by one person, the defendant. No doubt the successful operation of the spring was greatly handicapped because of the lack of good hotel accommodations for those who desired treatment and to make use of the water, while a hotel of the proportions shown and described in the plans and specifications located in a small village like Pulaski would hardly be considered for a moment, unless it was to be operated in conjunction with the mineral springs which were located on the other property described in the lien filed. This was the general purpose for which the two parcels of land were to be used and they formed the parts of the single business plant.”

By the Act of June 4, 1901, P. L. 431, curtilage, to be regarded as appurtenant to a building and bound by a mechanic’s lien filed against it, is “such as is reasonably needed for the general purpose” for which the structure is erected, and belongs to the same owner. As a rule, curtilage does not extend beyond the lot on which the building is erected, but when more land is reasonably needed for the general purpose of the structure and at the time the same is being erected the owner of it intends that another lot in addition to the one on which it is being built shall be included in the curtilage and constitute a part of the same, it is reasonable that a mechanic’s lien should extend to both. The value of a building after its erection depends upon the ability of the owner, or those claiming under him, to put it to its intended use, and, if it cannot be put to such use without having the curtilage manifestly intended for it by the owner at the time he induced the labor and material to go into it, such curtilage ought to be regarded as appurtenant to it, even if it does include land not physically connected with the lot on which the building is erected. The legislature might have provided otherwise, but it has not by the act of 1901. Under the old mechanic’s lien act of June 16, 1836, the lien of a mechanic extended to the ground covered by the building “ and to so much other ground immediately adjacent thereto” as might have been necessary for the ordinary and useful purposes of the building. But there is no such limitation in our present act, and it is, therefore, a question under conditions existing in any particular case what other land of the owner of the building in addition to the lot upon which it is being erected, shall be bound by a mechanic’s lien, as being “reasonably needed for the general purpose” of the structure.

Appeal dismissed at appellant’s costs.


author: Mr. Justice Potter,

text:
    Studebaker v. Shelby Steel Tube Company, Appellant.

      Negligence — Master and servant — Defective scaffolding.

    In an action by an employee against his employer to recover damages for personal injuries caused by the fall of a scaffold constructed by the defendant for the use of its employees, the case is for the jury and a verdict and judgment for plaintiff will be sustained where the testimony is conflicting as to the safety of the method used in bracing the scaffolding.
    Argued Oct. 13, 1909.
    January 3, 1910:
    Appeal, No. 193, Oct. T., 1909, by defendant, from judgment of C. P. Lawrence Co., March T., 1908, No. 58, on verdict for plaintiff in case of Charles Studebaker v. Shelby Steel Tube Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Porter, P. J.
    The facts appear by the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $2,775 and interest $349.18 making a total of $3,124.18. Defendant appealed.

      Error assigned was various instructions.

      J. Norman Martin, with him Joseph W. Humphreys, for appellant.

      Charles R. Davis, with him Robert K. Aiken, for appellee.
   Opinion by

Mr. Justice Potter,

This was an action to recover damages for injuries sustained by the plaintiff, from the fall of a scaffold under which he was working, upon the premises of his employer, the defendant company. The plaintiff was engaged at carpenter work upon some beams, and was working temporarily under a scaffold which was constructed by the defendant company for the use of some bricklayers who were engaged in the erection of a brick wall. The plaintiff was entitled to a reasonably safe place in which to work, and the precise question here raised is whether the scaffolding which fell had been constructed and left by the defendant in a reasonably safe condition. The testimony in this respect shows a disputed question of fact. There is evidence tending to show that the scaffolding would not have fallen had it been securely braced; in the method of construction adopted, the braces extended only about eight feet from the ground, and this, according to the testimony of the foreman, Gallagher, was sufficient. On the other hand, the evidence of two expert and experienced builders called in behalf of the plaintiff, was that the safe and proper way to brace the scaffolding was to extend it much higher, and up to the platform upon which the bricklayers were to stand. They gave apparently good reasons for their opinion as to this matter. There was therefore a conflict in the testimony as to the safety of the method of construction used, which was sufficient to require the submission of the case to the jury. This was not one of the cases in which the employees built their own platform from materials furnished by the employer, or where the injury was due to the negligence of a coemployee. The defendant company had undertaken, as a separate matter, to furnish the scaffold in a completed form, and under the conflicting evidence, it was for the jury to say whether or not it had complied with its duty to so complete the scaffold as to make it reasonably safe for those who should be called to work upon or about it.

The verdict was informal, in apparently awarding interest, but the plaintiff was entitled to compensation for the delay, and no harm resulted from the setting out by the jury of the method by which they reached the total sum which they awarded as a verdict.

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


text:
    Weitz v. Banfield, Appellant.

      Practice, C. P. — Charge—Trial.
    1. Where the trial judge fully and correctly sets forth in his charge the claims of each party, without particularly referring to the testimony, and tells the jury that they are to make up their verdict from the evidence as they remember it, the judgment will not be reversed because the judge did not particularly refer to certain admissions made by one of the parties, and this is particularly the case, where the judge was not asked at the trial to make comment upon them.

      Appeals — Assignment of error — Refusal of new trial.

    2. The refusal of a motion for a new trial is not a proper subject for an assignment of error.
    Argued Oct. 13, 1909.
    January 3, 1910:
    Appeal, No. 185, Oct. T., 1909, by defendant, from judgment of C. P. Beaver Co., June T., 1907, No. 159, on verdict for plaintiff in case of Edward E. Weitz, now William Goldberg, v. William Banfield.
    -Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit on promissory notes. Before Inghram, P. J., specially presiding.
    Verdict and judgment for plaintiff for $5,195.70. Defendant appealed.

      Errors assigned were in refusing new trial and in failing to call the jury's attention to certain admissions of plaintiff.

      J. F. Reed, with him J. P. Whitla, for appellant.

      Samuel IT. Miller, with him Edwin S. Weyand and Forest G. Moorhead, for appellee.
   Opinion by

Mr. Justice Stewart,

The suit was against the defendant as indorser of two promissory notes, each for $3,000, drawn by the West Penn Foundry & Machine Company and R. W. Davies, payable to the order of the plaintiff, Goldberg, and indorsed before delivery by the defendant and another. The notes passed to the plaintiff in the course of a settlement between Davies, representing the Penn Foundry & Machine Company, of which he was president, and the defendant, to whom the company was indebted on various accounts. Whether plaintiff was entitled to recover turned on a single and simple fact — were the notes obtained from Davies while he was under duress? The plaintiff had made information against Davies charging him with having procured by false pretense plaintiff’s indorsement of a note of the Penn Manufacturing & Machine Company, which plaintiff had been compelled to pay. Davies was accordingly arrested and taken before a magistrate who after a hearing required bail in $1,000 for his appearance at the next term of court to answer. Subsequently, on the same day, Davies was discharged without having entered bail, and the prosecution abandoned. The effort on part of the defense was to show that the settlement, during which the notes in suit passed to the plaintiff, was. made while Davies was under arrest. The contention of the plaintiff was that Davies had been discharged from arrest about ten o’clock in the morning, and that the settlement was not entered upon until during the afternoon. This states the whole case. The court submitted the issue to the jury in this way: “The defendant claims that Mr. Davies was arrested there on the information of Mr. Goldberg, by the constable, and taken before the justice of the peace who held him for bail in the sum of $1,000 for his appearance at the next term of the proper court in Mercer county; and he claims that while he was under arrest, and before he was discharged by the justice, that he and Mr. Davies were forced to give these notes to Mr. Goldberg; that he did not do it voluntarily or willingly, but that he did it under duress, or by force. And it is claimed, having been compelled to do this under such circumstances, that the makers of the notes would now be relieved from payment, and that the relief would attach the indorser, Mr. William Banfield. If you find the facts to be as claimed by the defendant, we instruct you that it would be a good defense to the collection of these notes, and that your verdict would be for the defendant.

“ Now on the part of the plaintiff it is claimed that although Mr. Davies had been arrested on the information of the plaintiff, that he was discharged by the justice, that he was discharged about ten o’clock in the morning, and Mr. Goldberg claims that the settlement took place about four o’clock in the afternoon at Mr. Kline’s office. If that is the view you take of the evidence, gentlemen, then there was no duress at that time, — he had been discharged, and was at liberty to go.”

If this narrowed the issue unduly, as perhaps it did, since, as stated, it seems to omit some elements which are ordinarily considered important if not material in cases of this character, it is a matter which does not concern us in this inquiry. Both sides evidently were content that the case should be submitted in the way it was, inasmuch as no exception appears. The jury found for the plaintiff, that is, that the settlement was not made while Davies was under arrest. Nothing is assigned for error except failure on the part of .the trial judge in his charge to direct attention to certain alleged admissions by Goldberg when a witness on the stand; the charge of the court as a whole, which it is claimed was unfair and inadequate, and refusal of the motion for a new trial. The charge clearly stated the issue, and was a full and fair presentation of the claims made on either side as to what were 'the proven facts in the case. The testimony of the individual witnesses was not reviewed or discussed. The complaint is that the jury’s attention was not specially directed to certain admissions by the plaintiff which it is claimed were inconsistent with his present demands. This much the defendant would have had a right to expect had the trial judge attempted any review or discussion of the plaintiff’s testimony; but he did not. What he said was simply with a view to bring clearly and distinctly to the minds of the jury what each side claimed to be established by the evidence, and no reference was made to the testimony of the individual witnesses. After stating very clearly what was claimed on one side and the other to be the facts established, he charged as fellows: “Now in determining the questions of fact you will rely on the evidence as you remember it; you will not depend on statements either of counsel or of the court as to what has been established by the testimony, but you will make up your verdict from the testimony as you remember it, taking it all into consideration. It is your duty to remember it all, and to consider it all in the making up of your verdict; as you find the evidence, so your verdict will be.” This, with what preceded, was an adequate presentation of the case. The witnesses were few in number; the testimony while contradictory was easily understood in its significance; and there was nothing in the case that called for a fuller discussion of it by the court. If such admissions were made by the plaintiff as defendant insists there were, defendant had the full benefit of them. We will assume that counsel made the most of them in the discussion before the jury. The court certainly said nothing to damage their effect. Not having asked for judicial comment upon them, defendant is not in position to complain that comment was withheld: Kauffman v. Griesemer, 26 Pa. 407; Fox v. Fox, 96 Pa. 60.

The refusal of the motion for a new trial is not a proper subject for an assignment of error. It was within the reasonable discretion of the court below to. grant or refuse the motion. The assignments are without merit and the judgment is affirmed.


author: Mr. Justice Mestrezat,

text:
    Commonwealth ex rel. v. McConnell, Appellant.

      Lunacy — Committee—Investment of funds — Surcharge.
    Where a committee of a lunatic, without an order of court, invests the lunatic’s estate in the bonds of a private corporation, secured by a mortgage, and the bonds become worthless by the bankruptcy of the corporation, he is personally liable for the loss. The court will not four years after the investment was made, and after the bonds had become worthless, ratify and approve the investment nunc pro tunc.
    Argued Oct. 13, 1909.
    Appeal, No. 202, Oct. T., 1909, by defendant, from decree of C. P. Beaver Co., Sept. T., 1909, No. 200, dismissing exceptions to auditor’s report in case of Commonwealth ex rel. Fairman Algeo v. Mary Riley, a lunatic, W. A. McConnell, Committee.
    Before Mitchell, C. J., Fell, Mbstrezat, Potter and Stewart, JJ.
    Affirmed.
    Exceptions to report of A. P. Marshall, Esq., auditor.
    From the record it appeared that the committee of Mary Riley, a lunatic, William A. McConnell, invested several thousand dollars of the lunatic’s estate in bonds of the Beaver Valley Brewing Company. These bonds were secured by a mortgage. The brewing company subsequently went into bankruptcy, and the bonds became worthless. The auditor surcharged the committee with the loss, amounting to $11,460. Exceptions to the auditor’s report were overruled in an opinion by Holt, P. J.

      Errors assigned were in overruling exceptions to auditor’s report.

      Frank H. Laird, for appellant.
    The investment was a proper one: Twaddell’s App., 5 Pa. 15; Spaulding v. Bullock, 20 Pa. Superior Ct. 301; Hain’s Est., 167 Pa. 55; Neff’s App., 57 Pa. 91; Calhoun’s Est., 6 Watts, 185; Crist v. Brindle, 2 Rawle, 121; Eyster’s App., 16 Pa. 372; Cridland’s Est., 132 Pa. 479.

      Frank E. Reader, of Hice, Morrison, Reader & May, for appellee.
    The surcharge was proper: Earley’s App., 103 Pa. 273; Barker’s Est., 159 Pa. 518; Huey’s Est., 1 Chester Co. Rep. 170; Barker’s Est., 32 W. N. C. 540; Frankenfield’s App., 102 Pa. 589; Hemphill’s App., 18 Pa. 303; Black’s Case, 18 Pa. 434; Renninger v. Thompson, 6 S. & R. 1.
    In this case the decision of the question as to approving the investment was peculiarly within the discretion of the court, for the reason that the request was for an order nunc pro tunc. The maldng of such an order is always discretionary: Ley v. Union Canal, 5 Watts, 104; Weidner v. Matthews, 11 Pa. 336; Lance v. Bonnell, 105 Pa. 46.

      January 3, 1910:
   Opinion by

Mr. Justice Mestrezat,

We are not inclined to disturb the rule announced by Chief Justice Black more than half a century ago in Hemphill’s App., 18 Pa. 303, and since recognized and followed by this court. In delivering the opinion in that case the Chief Justice said (p. 305): “ In England it has been held for more than a century past to be settled law, that a trustee can only protect himself from risk, when he invests the trust fund in real or government securities or makes the investment in pursuance of an order by the court. . . . The same rule has been adopted in its whole length and breadth by the courts of New York and New Jersey. ... In Pennsylvania this doctrine does not appear ever to have been either affirmed or denied. . . . But the time has come when the interests and rights of trustees, as well as orphans, married women and insane persons, demand the settling of it, and we think the rule here ought to be as it is elsewhere.” In Worrell’s App., 23 Pa. 44, Knox, J., delivering the opinion said (p. 48): “It may now be considered as settled law, that in Pennsylvania an investment by a guardian or other trustee, unless authorized by the deed of trust, in the stock of an incorporated company, whether a bank, railroad, canal, manufacturing, or mining corporation, cannot be made at the risk of a ward or other cestui que trust. It is unnecessary to repeat the reasons which are the foundation of this rule. In England and in this country the adoption of the rule has been found essentially necessary for the protection of those who could not protect them-selves. It will not do to say that because prudent men sometimes invest their own money in such stocks, guardians may legally invest the estate of their wards in like manner.” About thirty years later after full argument and due consideration, we recognized and enforced the rule announced in those cases in Frankenfield’s App., 11 W. N. C. 373. It was said (p. 374): “This being so, the law regulating investments by committees of lunatics becomes applicable to the case and controls it. The act of June 12, 1836, sec. 25, expressly directs that such investments must be made under the direction of the court of common pleas, and only exempts the committee from liability for loss when he pursues this course and in good faith. In Hemphill's App., 18 Pa. 303, it was firmly and definitely settled that a trustee can only protect himself from risk when he invests the trust fund in real or governmental securities, or makes the investment in pursuance of an order of court.''

The doctrine thqs firmly established in this state prohibits a trustee from investing the estate of his cestui que trust in the bonds or stocks of a private corporation. The people of the commonwealth have attempted to enforce the rule by art. Ill, sec. 22, of the present constitution, which prohibits the general assembly from authorizing the investment of trust funds by a trustee in the bonds or stocks of any private corporation. Time has tested the wisdom of the rule, and, as our cases declare, it is firmly established in this commonwealth.

The legislature has provided that trustees may invest their funds on real estate security or in securities of certain public corporations by consent of the court, and that the trustee shall then be exempt from liability for loss on such investment. In addition to that legislation, the general assembly passed the Act of June 13,1836, P. L. 597, 2 Purd. (13th ed) 2396, sec. 34 of which provides: “It shall be lawful for any committee as aforesaid, by the leave and under the direction of the court of common pleas having jurisdiction, as aforesaid, to invest the money of a lunatic or habitual drunkard, in such stocks or upon such security as shall be approved of by such court; and if such investment be made bona fide, the committee making the same shall not be liable for any loss that may arise thereby.”

The committee of the lunatic in the present case invested part of the funds of the ostaté in first mortgage bonds of the Beaver Valley Brewing Company, a private corporation, and it appears that the company has become bankrupt. The beneficiary objected to allowing the committee a credit in his account for the bonds. The auditor and the learned court below refused to allow the credit, and the committee has appealed. Under our authorities, it is apparent that the investment was illegal and the committee had no right to make it. This is so well settled by the decisions we have cited above that a discussion of the question is unnecessary. While this may be a hardship upon the committee, he could have relieved himself from all liability for the investment of the funds of the cestui que trust by applying to the common pleas for an order of court. The legislature has made provision for the protection of the committee of a lunatic in the investment of trust funds, and the committee should avail himself of the statute. The lunatic is the ward of the court and the committee is simply its bailiff or agent in protecting him and his estate. There is every reason, therefore, why the court should be consulted about the investment of his funds. This was the idea of the legislature when it enacted the statute of 1836 authorizing the committee to obtain the protection of the court in the investment of a lunatic's estate. If, therefore, the committee disregards the act of assembly and invests the trust funds in other than statutory securities and without the consent of the court, he does so at his own and not at the lunatic's peril. The lunatic is helpless, unable to protect himself or his estate, and hence the legislation, enacted for his protection, should be rigidly enforced.

The court properly refused to ratify the investment on the application of the committee. As we have seen, the committee should not have invested the funds of the lunatic in the bonds of the brewing company, a private corporation, and at the time the application was made for the ratification of the investment, the brewing company was insolvent and in bankruptcy. The application was four years after the investment had been made, and after the auditor had held that the investment was illegal and surcharged the committee. To grant the application and approve the investment nunc pro tunc as of the time it was made, would, under the circumstances of the case, encourage injudicious and illegal investments of the estates of cestuis que trust. We are all of opinion that the learned judge did not commit error in declining to ratify the investment.

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


text:
    Ramsey, Appellant, v. Ramsey
    (No. 1).

      Will — Conversion—Blending of real and personal estate — Power of sale.

    1. Even if there be no positive direction in a will to sell, yet an intention to convert into money will be implied where the will blends real and personal estate in such a way as to show that the testator intended to create a fund out of both and bequeaths the shares thereof as money.
    2. Where a testator devises a farm at a stipulated price to one of his sons, excepting a vein of coal; blends the remainder of his real estate with the personalty, divides the total into shares, malting the price of the farm part of such total, and then distributes the shares among his wife and children, the will works a conversion of the real estate including the coal under the farm devised to the son.
    Argued Oct. 13, 1909.
    Appeal, No. 13, Oct. T., 1909 by plaintiff, from decree of C. P. Washington Co., No. 1,762, In Equity, dismissing bill in equity in case of L. H. Ramsey v. Elizabeth Jane Ramsey, Kate F. Ramsey, U. B. Ramsey, Morgan R. Prigg and Lillian B. Prigg, his wife, in right of the wife.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Bill in equity for partition. Before Taylor, J.
    From the record it appeared that W. C. Ramsey died on December 3, 1902, leaving a will, by which he devised to his son, L. H. Ramsey, a farm designated as the “home farm.” Nothing was said in the will as to the coal under this farm, except that he stated: “ It is my wish and desire that there shall be no real estate disposed until the coal has been sold under all of it.” After the will was probated it was agreed among the parties in interest that the devise to L. H. Ramsey should be construed as all of the home farm, containing about 155 acres, except the Pittsburg or River vein of the coal therein.
    Other material portions of the will are quoted in the opinion of the Supreme Court.
    The court dismissed the petition on the ground that the will worked a conversion of the real estate, including the coal in the Pittsburg vein under the home farm.
    January 3, 1910:

      Error assigned was decree dismissing the bill.

      Harry A. Jones, with him T. F. Birch and John B. Mc-Creight, for appellant.
    There was no conversion under the will: Yerkes v. Yerkes, 200 Pa. 419; Painter v. Painter, 220 Pa. 82; Lehman’s App., 105 Pa. 128; Jones v. Caldwell, 97 Pa. 45; Peterson’s App., 88 Pa. 397; Sauerbier’s Est., 202 Pa. 187; Perot’s App., 102 Pa. 235; Rawle’s App., 119 Pa. 100.

      B. W. Knox, for appellees.
    By the force and effect of the will, and of the Act of February 24, 1834, P. L. 73, secs. 12 and 13, the title of W. C. Ramsey had devolved upon and is vested in his executors: Kirk v. Carr, 54 Pa. 285; Morrow v. Brenizer, 2 Rawle, 185; Dundas’s App., 64 Pa. 325.
    This being so, there can be no partition at the suit of the beneficiaries under the will: Keim’s Est., 201 Pa. 609; Painter v. Painter, 220 Pa. 82.
   Opinion by

Mr. Justice Stewart,

It is not a question for us to consider whether the will of W. C. Ramsey created a severance of estates in the surface and coal of the land devised. That it did, so far as relates to the Pittsburg vein of coal, is definitely and distinctly settled by the agreement entered into between the parties in interest, in which agreement differences of opinion were reconciled, and a common understanding was expressed as to the intention of the testator in this respect which was to govern in the distribution of the estate. The only question is, is the Pitts-burg coal vein, underlying the surface of the home farm devised to this appellant, the subject of partition? Appellant contends that it is; and his appeal is from a decree dismissing the bill in which he asked that partition be ordered. The contention on the other side is, that by the will the estate in the coal was converted, and that it remains for the executor to sell it and account for the proceeds. The question is unaffected by the agreement of the parties referred to. That agreement left the will in its own vigor with respect to' everything not specifically referred to and defined in the agreement. The important items in the will in this connection are as follows:

“ Item 8. It is my wish and desire that there shall be no real estate disposed of until the coal shall have been sold under all of it.

“Item 9. Also it is my wish and desire that my son L. H. Ramsey shall accept the home farm at a value of ($9,000) Nine thousand dollars in the event that I build a barn before my de-' mise; in the event that I fail to build the barn before my demise, he is then to have the home farm, or ($8,000) Eight thousand dollars.

“Item 10. Then I direct that all my estate both personal, real and mixed, shall be divided into five equal shares. One equal share I give to my beloved wife, Elizabeth Jane Ramsey, one equal share to my son U. B. Ramsey, one equal share to my son J. H. Ramsey, one equal share to my daughter, Kate Florence Ramsey one equal share to my daughter, Mrs. Lillian Blanche Prigg.

“Item 11. It is hereby understood that the equal part going to my son, L. H. Ramsey, shall be deducted from the price of the home farm.

“ Item 12. In making up the balance of my estate as heretofore devised, the price of the home farm is to constitute a part of that sum.”

It is a familiar doctrine that even if there be no positive direction in the will to sell, yet an intention to convert into money will be implied where the will blends real and personal estate in such a way as to show that the testator intended to create a fund out of both and bequeath the shares thereof as money: Darlington v. Darlington, 160 Pa. 65. While we have here no express direction to sell, it is manifest that the testator contemplated a sale of his lands as the means by which the distribution he directed could be made. He blends the real estate with the personalty and divides the total into shares. In express terms he makes the price of the home farm a part of that total, and directs that the price is to be deducted from the share of the party to whom it is given. The intention to bequeath these shares in the general total as money is unmistakable. The case of Painter v. Painter, 220 Pa. 82, so much relied on by appellant’s counsel, is wholly without application. In that case there was an express direction to sell; but because of conditions arising subsequent to the death of the testator, defeating, as a majority of the court thought, the purpose the testator had in mind when he directed his land to be sold, it was held that no conversion took place. Here nothing occurred before or after the testator’s death to disappoint expectation or defeat purpose; and therefore nothing to change, alter or modify the directions of the will as to method and manner of distribution of the estate. As we have said, the agreement between the parties in interest left the will stand in its own vigor, except as to those particulars specially interpreted by the agreement. There is nothing in it indicating even in a remote way a purpose to reconvert.

The appeal is dismissed at costs of appellant.


text:
    Ramsey, Appellant, v. Ramsey
    (No. 2).

      Will — Conversion—Blending of real and personal property — Partition.
    Where a testator owning an undivided interest in coal lands works a conversion of real estate by his will, by blending real and personal estate together for the purpose of distribution, his executors, and not the distributees under the will, are entitled to maintain partition proceedings against the owners of the other half of the coal land.
    Argued Oct. 13, 1909.
    Appeal, No. 14, Oct. T., 1909, by plaintiff, from decree of C. P. Washington Co., No. 1,763, In Equity, dismissing bill in equity in case of L. H. Ramsey v. Elizabeth Jane Ramsey, Kate F. Ramsey, U. B. Ramsey, Morgan R. Prigg and Lillian B. Prigg, his wife, in right of the wife, M. J. Flynn and E. K. Gribben.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Stewart, JJ.
    Affirmed.

      January 3, 1910:
    Bill in equity for partition. Before Taylor, J.
    In addition to the facts stated in Ramsey v. Ramsey, No. 1, ante, p. 249, it appeared that the coal involved in the present proceeding was situated in East Finley township, and that the decedent owned a half interest therein, M. J. Flynn and E. K. Gribben being the owners of the other half interest.
    The court dismissed the bill.

      Error assigned was decree dismissing the bill.

      Harry A. Jones, with him T. F. Birch and John R. Mc-Creight, for appellant.

      James I. Brownson, with him R. W. Knox, for appellees.
   Opinion by

Mr. Justice Stewart,

This appeal presents the same question that was raised in Appeal No. 13, ante, p. 249. This bill asks partition of the coal on one of the tracts in which testator had an undivided one-half interest, and the cotenants, Flynn and Gribben, were made parties defendant. The contention is that, even conceding the conversion under the will, such circumstance could not have prevented either of these cotenants from demanding partition at any time, and that if they had such right, it equally belonged to the appellant. This would be entirely correct were the appellant a devisee of the other undivided one-half, but we have just decided that he is not; that he is simply a legatee with respect to all except the home tract which, minus the Pittsburg coal vein, was specifically devised to him. For the reasons stated in the opinion in the other case, the appeal here is dismissed at the cost of the appellant.


text:
    Vandegrift, Appellant, v. Vandegrift.

      Contract — Illegal contract — Partnership—Violation of liquor law— Concealment of name of one of the partners — Act of June 9, 1891, P. L. 257, sec. 4, and act of congress, internal revenue laws, sec. 3259, tit. 35, ch. 4 (2 U. S. Comp. Stat. 2113).
    1. If a plaintiff is compelled to rely upon an illegal contract to make out his right to what he asks he cannot succeed.
    2. A bill in equity by a surviving partner against the executrix of the deceased partner for an accounting cannot be sustained where it appears that the partnership agreement was for the manufacture and sale of distilled spirituous liquors, that the business was to be conducted in and under the name of one of the partners only, and that for years all the licenses, both state and federal, were taken out in the name of the deceased partner only, the name of the other partner being wholly concealed on account of creditors. Such a contract of partnership is an illegal contract in clear violation of the Pennsylvania Act of June 9, 1891, P. L. 257, sec. 4, and the act of congress, internal revenue laws, sec. 3259, tit. 35, ch. 4 (2 U. S. Comp. Stat. 2113).
    3. Where a party seeking to recover is obliged to make out his ease by showing an illegal contract or transaction, or through the medium of an illegal contract or transaction, he is not entitled to recover any advances made by him in connection with the contract, or money due him as profits derived from the contract.
    Argued Oct. 14, 1909.
    Appeal, No. 94, Oct. T., 1909, by plaintiff, from decree of C. P. Washington Co., No. 1,777, In Equity, dismissing bill in equity in case of John H. Vandegrift v. Julia A. Vandegrift and Julia A. Vandegrift, Executrix of the Estate of John M. Vandegrift, deceased.
    Before Mitchell,- C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for a partnership accounting and the appointment of a receiver. Before McIlvaine, P. J.
    The opinion of the Supreme Court states the facts of the case.

      Error assigned was decree dismissing the bill.

      January 3, 1910:

      R. W. Irwin, with him J. A. Wiley and L. R. Boyd, for appellant.
    It is a familiar rule of law that in the construction of contracts which are.susceptible of two interpretations, one of which is legal and the other is illegal, that construction must prevail which will render the contract legal: Hobbs v. McLean, 117 U. S. 575 (6 Sup. Ct. Repr. 870).
    This ease is ruled by Brooks v. Martin, 69 U. S. 70. See also Hertzler v. Geigley, 196 Pa. 419.

      A. G. Braden, with him Chas. W. Campbell, for appellee.—
    A contract of partnership to manufacture and sell vinous, spirituous, malt and brewed liquors in Pennsylvania, in which it is agreed that the business shall be run in the individual name of one of the partners and the other partner is to be a dormant partner and his name not revealed, is illegal both under the laws óf congress and of the commonwealth of Pennsylvania: Mitchell v. Smith, 1 Binney, 110; Coulon v. Anthony, 4 Yeates, 24; Freedley v. Jacoby, 220 Pa. 609; Johnson v. Hulings, 103 Pa. 498.
    The case of Brooks v. Martin was decided by a divided court and stands upon its own peculiar facts, and even upon those facts has not been recognized as authority by the courts of this state. It has been modified and distinguished in the federal courts; its soundness questioned in the courts of Massachusetts and New York and it has been repudiated by the courts of New Jersey: Hoffman v. McMullen, 28 C. C. A. 178; Snell v. Dwight, 120 Mass. 9; Todd v. Rafferty, 30 N. J. Eq. 254.
   Opinion by

Mr. Justice Potter,

This was a bill in equity filed by John H. Vandegrift against Julia A. Vandegrift, individually and as executrix of John M. Vandegrift, deceased, alleging a partnership between the plaintiff and John M. Vandegrift who was his son, and its dissolution by the death of the son, 'and praying for a receiver and an accounting. The answer denied the partnership and averred that the alleged partnership agreement was illegal and void. From the finding of fact by the trial judge, it appears that about the year 1892 John M. Vandegrift became engaged in the business of manufacturing and selling spirituous and distilled liquors, and until his death on January 29, 1907, continued therein. When he began it was upon a lot of ground in Allenport, Washington county, Pennsylvania, which he leased from George C. Maxwell and on .which were erected a dwelling house, a three-story building equipped with the necessary machinery, tanks, tubs and utensils for distilling, a one-story building used as a free warehouse, and a frame stable; but in the beginning of the year 1906 this lot and these buildings were conveyed to him in fee and the title thereto remained in him until the time of his death.

John H. Vandegrift, the father, became insolvent prior to 1892, and several judgments were entered against him which remain unsatisfied. On June 1, 1903, a few days before the marriage of John M. Vandegrift to the defendant, he and his father entered into and executed a written agreement of partnership, a copy of which was found among the papers of John M. Vandegrift, after his death. John M. Vandegrift became dissatisfied with the terms of this agreement a few days after its execution, and as a result a second agreement dated, however, the same day, June 1, 1903, was executed. A true copy of this second agreement is exhibit “A,” attached to the plaintiff's bill. These two agreements as a whole differed materially, but both of them provided for a partnership.

After these agreements were executed John H. Vandegrift received a share of the profits of the business, and was recognized by John M. Vandegrift as his dormant partner.

The business conducted by John M. Vandegrift was under licenses obtained from year to year in his own name from the United States government, and the court of quarter sessions of Washington county, Pennsylvania, and these licenses were obtained from the said United States government and the said court by the said John M. Vandegrift in his own name by his concealing the fact that John H. Vandegrift was interested in the business, and this was done with the knowledge of the said John H. Vandegrift, their purpose being to keep the creditors of John H. Vandegrift, who was insolvent, from learning that he had property that might be taken in execution by them.

John M. Vandegrift, the son, left a last will and testament which was duly probated, in which he left all his property, real, personal and mixed, to his wife, the defendant in this suit, and the license granted by the court of quarter sessions of this county to John M. Vandegrift for the year ending May 1, 1908, was transferred to her, and was renewed to her at the license court for the year ending May 1, 1909, and she was at the date of the filing of this bill in possession of the real estate, and ran the distillery under the license that had been granted to her. The transfer of the license for the year 1908 was not opposed by John H. Vandegrift, the plaintiff in this suit.

The court below reached the conclusion that the real estate described in the bill was not partnership property, and that while the written agreement disclosed the intention of the parties to form a partnership, in which the business of selling liquor was to be carried on in the name of one partner, with the name of the other partner concealed, such a contract was illegal, both under the laws of the commonwealth of Pennsylvania, and under the act of congress, and therefore the agreement could not be enforced in a court of equity. The bill was therefore dismissed without prejudice to the plaintiff’s right to maintain an action at law to recover money due him as individual indebtedness of John M. Vandegrift, or to enforce his claim as tenant in common of the land.

The first question raised by the assignments of error, which is pressed, is whether a partnership agreement to engage in the manufacture and sale of distilled spirituous liquors, the business to be' conducted in and under the name of one of the partners only, is an illegal contract which a court of equity will not enforce.

The Act of June 9, 1891, P. L. 257, sec. 4, under which the Vandegrift license was obtained, provides that an applicant for a license as a distiller or wholesale liquor dealer shall set forth under oath in his petition to the court of quarter sessions “that the applicant is the only person in any manner pecuniarily interested in the. business so asked to be licensed, and that no other person shall be in any manner pecuniarily interested therein during the continuance of the license.” A willful false statement in the petition subjects the applicant to indictment for the crime of perjury, and upon conviction, to the penalties belonging to that crime. Had the petition contained no averment that no person other than the applicant was interested in the business, or had it shown that some other person had an interest, the license would undoubtedly have been refused.

The act of congress, internal revenue laws, sec. 3259, tit. 35, ch. 4 (2 U. S. Comp. Stat. 2113) provides that “every person engaged in, or intending to be engaged in, the business of a distiller or rectifier, shall give notice in writing, subscribed by him, to the collector of the district wherein such business is to be-carried on, stating his name and residence, and if a company or firm, the name and residence of each member thereof, the name and residence of every person interested or to be interested in the business.” A false notice is made punishable by fine and imprisonment.

The fact is undisputed in this case, that during the entire term of the agreement, John M. Vandegrift each year violated the laws, both of Pennsylvania and of the United States, by maldng false statements that no one but himself was interested in the business, and thereby subjected himself to liability for the penalties prescribed in the acts above quoted. These violations of law were expressly provided for in the agreement, which set forth that the business was “to be continued under the name of John M. Vandegrift as heretofore.” So that at best, the agreement contemplated the conduct of the business in an illegal manner. And the trial judge further finds as a fact that the concealment of plaintiff’s interest in the business “was done with the knowledge of the said John H. Vandegrift, their purpose being to keep the creditors of John H. Vandegrift who was insolvent, from learning that he had property that might be taken in execution by them.”

The fact that the partnership contemplated was to be formed in a manner forbidden by the statute, would render it illegal, even though aside from the statute, there would be no illegality. If the plaintiff is compelled to rely upon an illegal contract to make out Ms right to what he asks, he cannot succeed. Thus, in 1 Page on Contracts (1905) sec. 536, it is said: “No accounting can be had for a partnersMp in an illegal transaction, according to the weight of authority. Thus no action between partners can be maintained on a partnersMp agreement to make wagers with a third person, as to buy lottery tickets. Neither money advanced, profits made, nor losses paid, can be recovered; nor can an accounting be had.” This rule is put by the authorities upon the ground of public 'policy.

In considering an illegal contract in Swing v. Munson, 191 Pa. 582, Justice Dean said (p. 588): “In enforcing a policy in the interests of the whole public, the law takes but little note of the conduct of the immediate parties to the contract; the rule is, that courts, having in view public interests, will not lend their aid to the enforcement of an unlawful contract.”

Counsel for appellant contend that under the authority of Brooks v. Martin, 69 U. S. 70, the present action for accounting can be maintained even though the partnersMp agreement was illegal. The point ruled in that case was to the effect that the money and securities derived from the profits of a partnersMp in an illegal business, after the partnersMp contract had been fully executed, must be accounted for by the partner by whom they were received, and that a court of equity would entertain a bill for an accounting filed against Mm by Ms co-partner. The decision is also put upon the ground that the defendant was plaintiff’s agent as well as Ms partner, and the case involved the additional question of an alleged fraudulent purchase of the plaintiff’s interest in the partnership by the defendant.

But in McMullen v. Hoffman, 174 U. S. 639, the supreme court of the United States practically refused to follow Brooks v. Martin, saying by Justice Peckham (p. 668): “We simply say that, taking that case into due .and fair consideration, we will not extend its authority at all beyond the facts therein stated. We think it should not control the decision of the case now before us.” In that case, where the enforcement of a partnership contract was refused on the ground of the illegality of the business, it was further said (p. 669): “We must, therefore, come back to the proposition that to permit a recovery in this case is in substance to enforce an illegal contract, and one which is illegal because it is against public policy to permit it to stand. The court refused to enforce such a contract, and it permits defendant to set up its illegality, not out of any regard for the defendant who sets it up, but only on account of the public interest. It has been often stated in similar cases that the defense is a very dishonest one, and it lies ill in the mouth of the defendant to allege it, and it is only allowed for public considerations, and in order the better to secure the public against dishonest transactions. To refuse to grant either party to an illegal contract judicial aid for the enforcement of his alleged rights under it, tends strongly towards reducing the number of such transactions to a minimum. The more plainly parties understand that where they enter into contracts of this nature they place themselves outside the protection of the law so far as that protection consists in aiding them to enforce such contracts, the less inclined will they be to enter into them. In that way the public secures the benefit of a rigid adherence to the law.”

The true principle by which to determine whether a recovery can be had, in cases connected with illegal transactions seems to be clearly pointed out in Story on Agency, sec. 347, note: “The distinction between the cases where a recovery can be had and the cases where a recovery cannot be had, for money connected with illegal transactions, to be gleaned from all the authorities is substantially this: ‘That where the .party seeking to recover is obliged to make out his case by showing the illegal contract or transaction or through the medium of the illegal contract or transaction, then he is not entitled to recover any advances made by him in connection with the contract or money due him as profits derived from the contract; but when the advances have been upon a new contract, remotely connected with the original illegal contract or transaction and the title or right of the party to recover is not dependent upon that contract, but his case may be proved without reference to it, then he is' entitled to recover.’ ”

In the present case, the plaintiff cannot maintain his suit without proving and relying upon the illegal contract; this puts it within the class which a court of equity will not aid, and places it with the cases in which it will leave the parties as it finds them. There was no relationship of agency here, hence the decisions in Hertzler v. Geigley, 196 Pa. 419, and Com. v. Shober, 3 Pa. Superior Ct. 554, and other cases involving the principle of agency, do not apply to the question here involved.

The assignments of error are overruled, and the decree of the court below is affirmed, and this appeal is dismissed at the cost of appellant.