text:
    Vant v. Roelofs, Appellant.

      Negligence — Master and servant — Fellow servant — Vice principal — Evidence.

    It is the duty of the court to first determine whether, assuming all the facts proven at the trial to be true they are sufficient to show that the relation of vice principal was established.

      Negligence — Master and servant — Instructions to servant.

    No instructions are necessary from an employer to an employee as to a danger which is obvious to anyone.
    A vice principal is one placed in entire charge of the business, or a distant branch of it, having not mere authority to superintend certain work or certain workmen, but who exercises control of the business, or a particular branch of it, and where the employer does not exercise discretion or oversight of his own; or, secondly, one to whom the employer delegates a duty of his own which is a direct, personal and absolute obligation from which nothing but performance can relieve him. Where a, person is claimed to be a vice principal and the testimony on the subject does not come up to the legal requirement as above stated, it is error for the court to submit to the jury the question of vice principal-ship.
    Argued Jan. 10, 1907.
    Appeal, No. 221, Jan. T., 1906, by defendant, from judgment of C. P. No. 3, Phila. Co., March Term, 1904, No. 662, on verdict for plaintiff in case of Harry Yant v. Henry II. Roelofs, trading as Henry H. Roelofs & Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal, injuries. Before McMichael, J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict for plaintiff for $5,000, upon which judgment was entered for $4,000, all above that amount having been remitted.

      Error assigned was in refusing binding instructions for defendant.

      John II. Fow, with him F. Carroll Fow, for appellant.
    The evidence failed to sustain a finding that Lauber was a vice principal: McCool v. Lucas Coal Co., 150 Pa. 638; Casey v. Paving Co., 198 Pa. 348; New York, etc., R. R. Co. v. Bell, 112 Pa. 400; Lewis v. Seifert, 116 Pa. 628; Ross v. Walker, 139 Pa. 42; Prescott v. Engine Co., 176 Pa. 459.
    April 22, 1907:
    When anyone who has been instructed, and has had an opportunity to examine and 'inspect the place of his labor and its surroundings, undertakes to do the work, he assumes the risk incident to such work: Rooney v. Carson, 161 Pa. 26; Danisch v. Amer, 214 Pa. 105; Derr v. R. R. Co., 158 Pa. 365; Moore v. R. R. Co., 167 Pa. 495; Nye v. R. R. Co., 178 Pa. 134.

      Henry A. Craig, with him Augustas Trash Ashton, for appellee.
    There was a duty to instruct plaintiff so as to enable him to perform the work he was called upon to do With reasonable safety: Sweigert v. Klingensmith, 210 Pa. 565; Stapleton v. Traction Co., 5 Pa. Superior Ct. 253; Wagner v. Jayne Chemical Co., 147 Pa. 475.
    The duty cannot be delegated: Smith v. Coal & Iron Co., 186 Pa. 28; Dougherty v. Dobson, 214 Pa. 252.
   Opinion by

Mr. Justice Elkin,

The statement of claim in this case charges two acts of negligence ; first, that the appellee was not properly instructed in the use and operation of the machine upon which he was injured ; and, second, that the defendant was negligent in furnishing a machine which was so dangerous and defective as to render it unsafe. The evidence failed to support the allegation that the machine was defective and, therefore, unsafe, and we do not understand that this branch of the case was insisted upon in the court below or that it is pressed here. Wé may disregard this allegation in the further consideration of the question involved here.

We then come to the question whether the appellant was negligent in failing to give proper instructions to the appellee before placing him at work on the machine. The appellee relies wholly on the allegation that Mr. Lauber was a vice principal, and that he instructed him to take his fingers and stretch out the wrinkles when the machine was running, and asserts in following these instructions the revolving cone carried his hand against the disk and caused the injuries about which complaint is made. The appellee admits, however, that when lauber instructed him how to take the wrinkles out, he first stopped the machine, put his hand on the felt and smoothed out the wrinkles before the machine was again set in motion. If appellee had done the same thing he would not have been injured. It is contended, however, that Lauber told appellee that he could smooth the wrinkles out while the machine was revolving, but it was obvious to anyone with reasonable intelligence that if he put his hand upon a revolving cone and permitted it to remain there, it would be drawn against the disk. It did not require instructions from anyone to inform an employee about a danger that was so perfectly obvious to anyone with eyes to see and hands to feel. The machine was not complicated and had no hidden or latent dangers about which it was the duty of the employer to instruct an employee. The appellee was a young man about twenty years of age, had worked as an apprentice in the factory for a year, and on this particular machine about ten days at the time of the accident. Even if it be conceded that Lauber improperly instructed appellee in his duties, and this is not conceded, it would still be necessary for appellee to go one step farther and show that Lauber was a vice principal. The learned court below submitted this question to the jury. It is true that in some cases this is a question of fact to be determined by the jury. It must not be overlooked, however, that it is the duty of the court to first determine whether, assuming all the facts proven at the trial to be true, they are sufficient to show that the relation of vice principal was established. A vice principal is one placed in entire charge of the business, or a distinct branch of it, having not mere authority to superintend certain work or certain workmen, but who exercises control of the business, or a particular branch of it, and where the employer does not exercise discretion or oversight of his own; or, secondly, one to whom the employer delegates a duty of his own which is a direct, personal and absolute obligation from which nothing but performance can relieve him: N. Y., L. E. & W. R. R. Co. v. Bell, 112 Pa. 400; Lewis v. Seifert, 116 Pa. 628; Ross v. Walker, 139 Pa. 42; Prescott v. Engine Company, 176 Pa. 459; Casey v. Paving Company, 198 Pa. 348; Green v. Washington Oil Company, 218 Pa. 35.

Certainly the testimony offered in this case did not come up to this legal requirement and was insufficient to submit to the jury to determine the question of vice principalship.

Judgment reversed, and is here entered for defendant.


source: Caselaw Access Project

author: Mr. Justice Brown,

license: Public Domain

text:
    North Penn Iron Company v. International Lithoid Company, Appellant.

      Evidence — Proof of writing — Subscribing witnesses.

    Where a paper witnessed by two subscribing witnesses is offered in evidence, and it does not appear that any proper effort was made to secure the testimony of the two subscribing witnesses, the signature to the paper cannot be proved by a person familiar with the handwriting of the signer.

      Assignment — Equitable assignment — Notice.
    A written notice of an assignment of a chose in action served upon the debtor will protect the latter in making payments thereunder, although the assignment itself may not have been served upon him.
    Where a licenser of a patent notifies the licensee that he has assigned his rights to royalties under the license to a person named, and that royalties are to be paid to her, the plaintiff in an attachment execution against the licenser must show either that the direction to pay was to one who was the licenser’s wife and that she cannot show that it was not in fraud of creditors, or if the payee was not the licenser’s wife, that she was one to whom he assigned the royalties in fraud of his creditor’s rights.
    Argued Jan. 14, 1907.
    Appeal, No. 200, Jan. T., 1906, by defendant, from judgment of C. P. No. 2, Phila. Co., March T., 1904, No. 83, on verdict for plaintiff in case of The North Penn Iron Company v. Edward C. Brice, defendant, and The International Lithoid Company, garnishee.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Foreign attachment. Before Sulzberger, P. J.
    The facts are stated in the opinion of .the Supreme Court.

      April 22, 1907:
    The court charged in part as follows:
    “ This is an issue raised under an attachment and arose as follows : The plaintiff got a judgment against one Edward C. Brice, and a little before the attachment was issued and the rights of Brice in the garnishee company were held by virtue of it, they got a paper from Brice, who had then fled from this jurisdiction, or from a person called Sally Brice, who either does or does not exist, and who if she exists, so far as we know, is his wife, saying that the interest in this royalty no longer belongs to him, but belongs to her. The evidence of the making of that paper is in my judgment not adequate to establish it, but if it were, when a man who is indebted gives his property to his wife the first presumption of the law is that he gets nothing for it, and that in effect it remains within his own control and for his own use, and if that presumption is not to operate, positive evidence to the contrary must be produced. No such positive evidence has been forthcoming. Therefore, it becomes very immaterial whether Sally Brice does or does not exist, because if she does exist she is only in effect in this proceeding another name for the defendant himself. Holding this view, it becomes my duty to instruct you to find a verdict for plaintiff for the amount claimed, a statement of which will be handed to you by plaintiff’s counsel.”
    ’ Yerdict and judgment for plaintiff for $1,534.37. Defendant appealed.

      Errors assigned were (2) in rejecting the notice referred to in the opinion of the Supreme Court; (4) portion of the charge, quoting it; and (5) in giving binding instructions for defendant.

      Lewis Lawrence Smith, for appellant.

      Clifton Maloney, for appellee.
   Opinion by

Mr. Justice Brown,

In this foreign attachment the plaintiff, a creditor of the defendant, Edward O. Brice, attached moneys in the hands of the garnishee alleged to be due to him as royalties under a license agreement executed by him on June 29, 1901. By this agreement he is to receive a minimum royalty of $1,500 every six months. On December 3, 1903, he wrote the garnishee a letter in which he stated: “ I take this opportunity of notifying you that on October 5,1903,1 transferred and sold by good and sufficient deed of assignment all my right, title and interest in and to the license issued by me to the International Lithoid Company, on the 29th day of June, 1901, to S. M. Brice. All moneys that become due and payable to me will hence become due and payable to her. S. M. Brice has instructed her attorney, Mr. Joshua Pusey, to serve notice of revocation of the license issued to the International Lithoid Company by me, at the proper time. If you desire to anticipate this notice, kindly make check' to the order of S. M. Brice, and mail same to the above address.” After the receipt of that letter the royalties accruing under the license agreement were paid to S. M. Brice, the first payment having been made in December, 1903, and the last one in January, 1906.

At the trial the garnishée produced what purported to be the assignment by the defendant to S. M. Brice, referred to in his letter, the same having been handed to it by Joshua Pusey. After proving the defendant’s signature to the assignment by a witness familiar with his handwriting, it was offered in evidence, but objected to on the ground that its execution had not been properly proved, the two subscribing witnesses not having been called. This objection was sustained and the assignment excluded. The witnesses to it lived in New York, where it purports to have been executed, and as it did not appear that proper effort had been made to procure their testimony, the court cannot be said to have committed error in not permitting proof of its execution by secondary evidence..

But why should the letter of the defendant of December 3, 1903, to the garnishee have been excluded ? The genuineness of his signature to it was properly established by the testimony of a witness familiar with his handwriting, and, if the garnishee had never seen the assignment to which it refers, it would have been sufficient notice and authority from him to pay the royalties to another. He could not recover them if paid in pursuance of such notice, and what he cannot recover his attaching creditor cannot get, provided that his direction to pay them to another was not in fraud of its rights as one of his creditors. Under no condition could he recover what has been paid S. M. Brice, even if the royalties were a gift to her ; but if a gift to her at a time when he was indebted to the appellee, such gift would be void as to it. In his charge to the jury, directing a verdict in favor of the plaintiff, the learned trial judge said that even if the execution of the assignment had been properly established, it was to a person, if in existence, who was the wife of the defendant, and that the presumption of the law was that it was a gift to her and void as to creditors. Th'e assumption of the fact by the court that S. M. Brice is the wife of E. C. Brice was not justified by the evidence. She may be, but it was not so proven. The plaintiff offered no testimony on the subject, and from that of the two witnesses called by the garnishee who were asked about Sally Brice, it does not appear that she was his wife. On the contrary, William D. Tarnall testified that he had lived near the defendant, that he knew his wife, and that her name was Maud O. Brice. Albert S. Barker, the other witness, testified that Sally M. Brice was said to have been the wdfe of E. C. Brice, but that he did not know what his wife’s name was.

The letter of December 3, 1903, being in itself full authority to the garnishee to pay and full protection from any further claim by the defendant that the royalties be paid to him, it must have the same effect against the claim of the appellee, whose rights rise no higher than his, unless it can show either that the direction to pay was to one who was his wife and she cannot show that it was not in fraud of creditors, or if the payee was not his wife, that she was one to whom he assigned the royalties in fraud of his creditor’s rights.

The garnishee is a mere stakeholder of the rcyalties due under the license agreement and ought not to be subjected to the liability to pay them twice. Such liability may be incurred if this judgment on a verdict directed by the court is allowed to stand. The right of the appellant was to have the case go to the jury on the letter. The second, fourth and fifth assignments are sustained, and the judgment is reversed with a venire facias de novo.


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    Carter’s Estate.

      Wills — Construction—Distribution—Intestate law.

    Testator by his will created a trust for his children for life in the residue of his estate, and directed that “ at and immediately after the death of any such child to pay the principal of said share to any widow, husband or children surviving any such child, in such proportions as are provided by the intestate laws of this commonwealth, and in default of such widow, husband or children, then to the brothers and sisters of such deceased child, share and share alike.” A son died leaving a widow but no children. Held, that the fund for distribution consisting of personalty should be distributed one-half to the widow of the deceased son, and the other half to the testator’s surviving children.
    Argued Jan. 15, 1907.
    Appeal, No. 334, Jan. T., 1906, by Katharine E. Carter, from decree of O. C. Phila. Co., Jan. T., 1893, No. 237, sustaining exceptions to adjudication in Estate of William T. Carter, deceased.
    Before Mitchell, C. J., Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to adjudication.
    The facts are stated in the opinion of the Supreme Court.
    The auditing judge, Hanna, P. J., awarded the whole fund to Katharine E. Carter, widow of Charles J. J. Carter.
    On exceptions to the adjudication Penrose, J., filed an opinion sustaining the exceptions. Dallett, J., filed a dissenting opinion.

      Errors assigned were in sustaining the exceptions.

      H. Gordon McCouch, of Dickson & McCouch, for appellant.
    Charles’ widow is entitled to the whole of the principal held in trust from him under the sixth paragraph of the will as amended by the third paragraph of the codicil: Board of Missions’ App., 91 Pa. 507; Raudenbach’s App., 87 Pa. 51; Nicholas’s Est., 8 Pa. Hist. Rep. 725; Kellerman’s Est., 18 Pa. Superior Ct. 530; Miller v. Miller, 1 Duvall (Ky), 8; Stephenson’s Est., 30 Pa. Superior Ct. 97; Reck’s App., 78 Pa. 432.
    April 22, 1907:
    The will works an equitable conversion of the real estate: Severns’s Est., 211 Pa. 65; Fahnestock v. Fahnestock, 152 Pa. 56; Roland v. Miller, 100 Pa. 47; Hunt’s App., 105 Pa. 128; Jones v. Caldwell, 97 Pa. 42; Keim’s Est., 201 Pa. 609; Vanuxem’s Est., 212 Pa. 315; Tasker’s Est., 215 Pa. 267.

      John G. Johnson, for appellee.
    There was no devise or bequest in favor of the widow of Charles J. J. Carter of anything more than the proportion which would go to her as widow under the intestate laws.
    The will did not work a conversion of the real estate into personalty: Page’s Est., 75 Pa. 87; Hunt’s App., 105 Pa. 128; Keim’s Est., 201 Pa. 609; Vanuxem’s Est., 212 Pa. 315; Tasker’s Est., 215 Pa. 267; Severns’s Est., 211 Pa. 65.
   Opinion by

Mr. Justice Brown,

Katharine E. Carter, a daughter-in-law of William T. Carter, deceased, claims the entire share of his estate which he left in trust for a deceased son, her husband, Charles J. J. Carter, who died without leaving children. The following is the clause in the codicil to the will of the testator under which this claim is made : “ The rest, residue and remainder of my estate, real and personal, I order and direct the said trustees to hold in trust for my children share and share alike, until their arrival respectively at the age of twenty-three years, with full pow;er to the said trustees to apply so much of the income of the share of any such child which may in their judgment seem proper for their liberal maintenance and education; and upon the arrival of any of said children at said age, to pay the one-fourth part of the principal of the share coming to said child to him or her, absolutely, and to retain in trust for each of my said children the other three-fourths part thereof, to pay him or her the income thereof during his or her natural life, and at and immediately after the death of any such child to pay the principal of said share to any widow, husband or children surviving any such child, in such proportions as are provided „ by the intestate laws of this commonwealth, and in default of such widow, husband or children, then to the brothers and sisters of such deceased child, share and share alike.”

What the testator meant is free from all doubt. He gave to the son, Charles J. J. Carter, no power of appointment over the portion of his estate which he left in trust for him, and the son could not have disposed of it by will. The father was unwilling that the son should do so, for he himself directed what disposition should be made of it at the son’s death. That disposition is that it shall be divided among those persons who would be entitled to receive it, if the share had been the son’s absolutely and he had died intestate. When the testator provided that the principal of the share held in trust for the deceased son should go to the widow or children surviving him in such proportions as are provided by the intestate laws of this commonwealth, he meant that she should receive such portion of his estate as the intestate laws would give her in it if it were her husband’s. The meaning of the testator’s language could not be clearer. He did not provide that she should have the husband’s full share if he died without leaving children surviving, but that she should have only such portion of it as the intestate laws would give to her as a widow. They do not give her what she claims. With no children surviving a husband, the widow takes one-half of the personalty absolutely and a "life estate in one-half of the realty; with children surviving, her interest is one-third. If children of Charles J. J. Carter had alone survived, they would take the entire share-of their father in their grandfather’s estate, because under his will the intestate laws would give it to them. They do not give it to the widow, and she cannot, therefore, get it under the will of her father-in-law, which provides that she is to get only a widow’s share. We are asked by counsel for the appellant to say the testator meant that only in default of widow and children can the brothers and sisters of a deceased child take. The testator did not so write his will, but unmistakably expressed his intention' that in default of children the widow should take one-half of the son’s share, that with widow and children surviving she should take a third and they the remainder, and, with children alone surviving, they should take all. These are the proportions provided by the intestate laws. To read “ or ” “ and ” would not only be to read the codicil as the testator did not write it, but as he clearly did not intend to write it. On the opinion of the learned judge below expressing this view the decree may well be affirmed.

Whether the will of the testator worked a conversion of his real estate is not, as was properly held by the court below, a material question in this distribution and need not be decided. Under the power given to sell there has been an actual conversion, and one-half of the deceased son’s share has been awarded to the appellant absolutely as personalty. She cannot, therefore, very well raise the question of conversion, and it is not raised by either of the assignments. Both are overruled, and the decree is affirmed with costs to the appellees.


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    Real Estate Title Insurance & Trust Company v. McNichol, Appellant.

      Arbitration — Award—Partnership—Certainty of award.

    Where an agreement for arbitration provides that the amount found by the arbitrator shall be considered a debt presently payable for which judgment may be entered, an award which provides that to an amount found to be due other items shall be added without fixing their amount, is void for uncertainty.
    The very essence of awards is certainty. They are to put an end to controversy between the parties and are to be certain and final.
    Argued Jan. 17, 1907.
    Appeal, No. 114, Jan. T., 1906, by defendant, from order of C. P. No. 5, Phila. Co., March T., 1905, No. 4,677, discharging rule to strike off judgment in case of Real Estate Title Insurance & Trust Co., Catharine Elizabeth Wade and Bernard John McNichol, Executors of Estate of Daniel McNichol, deceased, v. Patrick McNichol.
    Before Mitchell, C. J., Eell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Rule to strike off judgment.
    The opinion of the Supreme Court states the case.

      Error assigned was the order of the court.

      April 22, 1907:

      Wm. Morgan Montgomery, with him John G. Bell, for appellant.
    The decisions of our state require that an award of an arbitrator shall not only be certain but final: Zerger v. Sailer, 6 Binn. 24; Spalding v. Irish, 4 S. & R. 322; Murray v. Bruner, 6 S. & R. 276; Henness v. Meyer, 4 Whart. 358.

      J. H. Brinton, with him Geo. McCurdy, for appellees.
   Opinion by

Mr. Justice Brown,

The partnership of D. & P. McNichol was dissolved by the death of Daniel McNichol on or about April 9, 1900. The partnership accounts not having been settled, and there having been various matters in dispute between the executors of the deceased partner and the appellant, they agreed, on December 6,1901, in writing, to submit the settlement of the partnership accounts and the various matters in dispute between the parties in relation thereto to an arbitrator under a stipulation that his decision should be final and conclusive, and that the amount found by him to be due from either party to the other should be considered a debt presently payable, for which judgment might be entered by the party in whose favor the award should be made. On August 16,1902, the arbitrator or referee made his report, awarding to the estate of Daniel McNichol the sum of $3,679.81, but to this definite award he added the following: “To this sum are to be added one-half of any amounts received by the surviving and liquidating partner, Patrick McNichol, since February 11, 1901, for account of the old firm, together with one-half of any book accounts and municipal claims owned by the firm.” This at once destroyed the certainty of the award.

It was the intention of the parties to the submission that the referee should pass upon the unsettled partnership accounts and the various matters in dispute, and finally settle, by a definite and certain award, the liability of the surviving partner, or the representatives of the deceased, and for the amount of the award judgment was to be entered against the party against whom it might be made. It is a cardinal requisite of every award that it be certain: Henness v. Meyer, 4 Wharton, 358. The stipulation in this case was, that the amount found by the referee should be considered a debt presently payable, for which judgment might he entered against the party found to owe it. But for what amount could judgment be entered on this award? No definite amount Avas found to be due by Patrick McNichol. The arbitrator directs that to the sum he finds due other items be added, without fixing their amount. He clearly regarded these items as being among those he was to settle, or he Avould not have directed them to be added to the sum aAvarded, and if they Avere within the terms of the submission it Avas his duty to definitely find their amount and embody it in his award. He could have found what amounts had been received by the surviving partner since February 11, 1901, on account of the old firm, and could readily have ascertained the amount of the book accounts and municipal claims owned by them. Instead of so finding, though he makes these items the subject of liability by the appellant, he leaves what they amount to for future ascertainment by someone else. This may cause litigation betAveen the parties, though the very purpose of the agreement was to settle all the partnership matters Avithout any litigation. The award, if alloAved to stand, instead of preventing it, may lead to it, for, under the direction of the referee, unascertained items, which may be disputed, are to be added to the award.

The very essence of aAvards is certainty. They are to put an end to controversy between the parties and are to be certain and final: Spalding v. Irish, 4 S. & R. 322. In Zerger v. Sailer, 6 Binney, 24, there was an aAvard for £60 “ to be paid by the plaintiff deducting an unsettled account of the plaintiff’s against the defendant.” The award was held to be void, and it was said by Tixghman, C. J., It is neither certain, final nor conclusive. How much was to be paid by the plaintiff to the defendant ? No man can say. Before that question is answered, you must settle the plaintiff’s account and the settlement of that action may involve the parties in another suit.” So, here, to determine what moneys were received by the liquidating partner since February 11, 1901, and what book accounts and municipal claims are Owned by the firm and held by the surviving partner, may involve him and the representatives of a deceased partner in another suit. The judgment entered on this award should have been stricken off. No reason was given by the court for alloAving it to stand.

The first and second assignments of error are sustained. The order of the court below discharging the rule to strike off the judgment is reversed, and the record is remitted with direction that the said judgment be stricken off.


author: Mr. Justice Brown, Mestrezat, J.,

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

      Will — Construction—Devise—Trusts and trustees.

    Testator by his will created a spendthrift trust in favor of his son J. in one-sixth of a particular tract of land. He gave the remaining five-sixths to trustees for his other five sons, C., S., I., G. and H. H. survived all the others and died without issue. It was provided in the will that if “H. shall die without leaving a child or children or a grandchild or grandchildren living at his death then that one of the said five-sixth parts of the lands .... shall go to and be equally divided among my said other sons C., S., I. and G., or such of them as shall be then living and the trustees hereinafter mentioned for my said son’J. in equal parts so that the then survivors of my said four sons C., S., I. and G. shall each take one equal share and the trustees for my said son J. shall take the other equal share thereof, each of which said equal shares shall pass to and-vest in the trustees herein appointed and their heirs, respectively, subject to the restrictions and limitations and for the uses herein declared in like manner as if the same had been so devised in the first instance, that is to say, the trustees for my said sons C., S., I., G. and H. to take in trust for the use of my said sons C., S., I. and G. in equal parts and for the uses hereinbefore mentioned and the trustees for my said son J. to take the trust for the like uses that hereinafter mentioned.” Held, that the trustees of J. took the whole interest of H. to the exclusion of the descendants of the other brothers.,
    Mestrezat, J., dissents.
    Argued Jan. 22, 1907.
    Appeals, Nos. 361, 362, 363, 364, 365, 366, 367, 368 and 369, by Orville Horwitz, Elizabeth Norris, Franklin A. Dick, Leilla H. Sharpless, Mary Garesche Norris, George W. Norris, assignee of Alexander G. Norris, George W. Norris, Holstein DeHaven, assignee of Lamar' Fisher, and George Quintard Horwitz, from decree of O. P. No. 3, Phila. Co., Assignees’ and Trustees’ Docket F. (O; O. P.) 1863-1869, No. 28, dismissing exceptions to auditor’s report In the Matter of the First and Final Account of Henry Norris, Trustee of the Fairhill Estate of Henry Norris under the will of Joseph Parker Norris, the elder, deceased, filed by his executors, J. Parker Norris and Holstein DeHaven.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Exceptions to report of John M. Scott, Esq., auditor.
    In addition to the facts stated in the opinion of the Supreme Court, it appeared that the spendthrift trust in favor of Joseph Parker Norris, created by the will of his father, was as follows :
    “ Item. I do hereby give and devise unto my executors hereinafter named and the survivors and survivor of them and the heirs of such survivor the other and remaining one full equal and undivided sixth part (the whole into six equal parts to be divided) of and in all and singular my said Lands Tenements and Premises called Fairhill in trust to let and demise the same for the best Rent that can be gotten therefor and to take collect and receive the said Rents Issues and Profits thereof as the same shall become due and payable and the nett annual Rents and income thereof after paying thereout one sixth part of the Taxes of the said premises and of all necessary and proper repairs and one like sixth part of my said wife’s annuity and also all the Costs and charges attending the execution of this trust to pay apply and dispose of to and for the maintenance and support and benefit of my son Joseph Parker Norris junior for and during all the term of his natural life in such way and manner however as that the same or any part thereof shall not become subject or liable to the payment of any of his debts present or future and so that no creditor present or future of my said son Joseph shall over be able to take seize or enjoy the same or any part thereof and from and immediately after the decease of my said son Joseph then as for and concerning the said one-sixth part of my said lands Tenements and Premises called Fairhill to and for the use and behoof of the child and children of my said son Joseph born and to be born that shall be living at his death and the lawful issue of such as may be then dead and in such parts shares and proportions a,nd for such estate and estates use and uses as he my said son Joseph by his last will and testament shall direct limit or appoint'and in default of such last will or appointment then in trust to and for the only proper use and behoof of all and every the children of my said son Joseph lawfully begotten born and to be born that shall be living at his death and the lawful issue of such as shall be then dead and their heirs and assigns forever equally to be divided among them part and share alike as tenants in common so always however that such surviving children of my said son Joseph shall take per capita and such issue shall take together in equal parts the share that his, her or their parent would have taken if then living Provided however that no division of this share of my said Fairhill Estate shall be made among the children of my said son Joseph in any event until the youngest of his children born and to be born shall have attained the age of Twenty-one years but that after the decease of my said son Joseph the nett annual rent or income thereof after deducting thereout as aforesaid shall be applied by the said trustees to the maintenance support and education of the children of my said son Joseph at their discretion and according to their best judgment until the youngest of his said children born and to be born shall have attained the age of twenty-one years.”
    The auditor awarded the fund among the decendants of the sons of testator per stirpes. The descendants of Joseph Parker Norris, Jr., claimed the whole fund and filed exceptions to the report. The exceptions were overruled, MoMiohael, J., filing the opinion of the court and von Mosohziskee, J., filing a dissenting opinion.

      Error assigned was in dismissing exceptions to auditor’s report.

      George Quintard Horwitz and John G. Johnson, for Orville Horwitz et al., appellants.
    As an identical clause of the will of Joseph Parker Norris, the elder, has been construed and interpreted by this court and as all the parties now before the court are precisely the same or in privity with the former litigants, the law of the case has been laid down, the will has been interpreted, and the question now before the court has been decided in favor of the appellants: Horwitz v. Norris, 60 Pa. 261; Durant v. Essex Co., 74 U. S. 107; R. R. Co. v. Schutte, 103 U. S. 118; Jones v. Habersham, 107 U. S. 174 (2 Sup. Ct. Repr. 336); Union Pacific Ry. Co. v. Mason City, etc., Ry. Co., 64 C. C. A. 348 (128 Fed. Repr. 230); Williams v. Chicago, etc., Ry. Co., 79 S. W. Repr. 1167; De Sollar v. Hanscome, 158 U. S. 216 (15 Sup. Ct. Repr. 816); Johnson Steel Street Rail Co. v. Wharton, Jr., & Co., 152 U. S. 252 (14 Sup. Ct. Repr. 608); Ryan v. People of New York, 79 N. Y. 593; Sprague v. Northern Pacific Ry. Co., 100 N. W. Repr. 842; Haven v. Haven, 181 Mass. 573 (64 N. E. Repr. 410); Marsh v. Pier, 4 Rawle, 273; Boltom v. Hey, 168 Pa. 418; Davidson v. Dallas, 15 Cal. 75; Hotaling v. Marsh, 132 N. Y. 29 (30 N. E. Repr. 249); Devine’s Est., 199 Pa. 250.
    Even if the court be of the opinion that the action you have taken in the case of Horwitz v. Norris, 60 Pa. 261 should not govern and determine this controversy, nevertheless it is contended that under the construction of the will, where the language of the testator is perfectly plain and clear, there can be but one decision in this case, to wit:' that the descendants of Joseph Parker Norris, Jr., through the trustees of the share of Joseph Parker Norris, Jr., are entitled to this estate to the exclusion of all the other descendants of Joseph Parker Norris, the elder: Hancock’s App., 112 Pa. 532; Schuldt’s Estate, 199 Pa. 58; Lewis’ Est., 203 Pa. 219.

      Samuel Dickson, with him Henry S. Drinkler, Jr., and H. Gordon McCouch, for Henry Norris et al., appellees.
    The province of. the court in construing a will is to determine and to give effect to the intention of the testator wherever possible, and the object and purpose of all rules of construction is to ascertain this intention: Middleswarth v. Blackmore, 74 Pa. 414; Sheetz’s App., 82 Pa. 213; Tyson’s Estate, 191 Pa. 218.
    Where the meaning of a will is in any way doubtful, the rule of equality among those by blood equally entitled may be taken as a guide for its interpretation: Malone v. Dobbins, 23 Pa. 296.
    Where two clauses in a will seemingly conflict they must be reconciled in accordance with the general intention of the will if possible, but where irreconcilable, the last must control: Jones’s App., 3 Grant, 169.
    April 22, 1907:
    Two Pennsylvania decisions are directly in point: Lapsley v. Lapsley, 9 Pa. 130, and Bacon’s Estate, 202 Pa. 535.

      John J. Ridgway, for J. Parker Norris, appellee.

      Hampton L. Carson, with him Wm. Felix Norris, for descendants of George W. Norris, deceased.

      M. Hampton Todd, for Jane McKee Norris, appellee.

      William Brooke Rawle with him Francis William Rawle, for estate of Henry Pepper Norris, deceased.
   Opinion bt

Mr. Justice Brown,

Joseph Parker Norris, the testator, whose will, executed in 1838, is before us on these appeals, died in 1811. He left six sons and seven daughters. Among his possessions were two large estates, known as “Fairhill” and “Sepviva.” He gave Sepviva to his daughters and Eairhill was devised to his sons, Charles, Samuel, Isaac, George, Henry and Joseph Parker, Jr. His residuary estate was given to all of his children, with the exception of Joseph,, who, for reasons stated by the testator, was excluded from participation in it. The interests in Fair-hill devised to Charles, Samuel, Isaac, George and Henry, passed to trustees for each of them under clauses in the will which are identical. The testator created a spendthrift trust for Joseph and devised a one-sixth interest in Eairhill to his executors in trust for him. They were not the trustees for the other five sons. The clause to be now interpreted is as follows: “ And upon this further trust that he my said son Henry Norris shall have full power and authority by his last will and testament to devise and settle one of the said five-sixth parts of the lands tenements and premises aforesaid called Eairhill to and on all or any of his issue lawfully begotten in such way and manner and under and subject to such restrictions and limitations or for such estate and estates use and uses as he my said son Henry may deem proper and in default of such last will or appointment then in trust as to that one of the said five-sixth parts of the said lands tenements and premises called Fairhill to and for the only proper use and behoof of all and every the children of my said son Henry Norris that shall be living at his death and the lawful issue of such as may be then dead and their heirs and assigns forever equally to be divided among them part and share alike as tenants m common so always however that such surviving children of my said son Henry shall take per capita and such issue shall take together in equal parts the share that his her or their parent would have taken if then living and if he my said son Henry shall die without leaving a child or children or a grandchild or grandchildren living at his death then that one of the said five-sixth parts of the lands tenements and premises aforesaid called Fairhill shall go to and be equally divided among my said other sons Charles Samuel Isaac and George or such of them as shall be then living and the Trustees hereinafter mentioned for my said son Joseph Parker Norris junior in equal parts so that the then survivors of my said four sons Charles Samuel Isaac and George shall each take one equal share and the Trustees for my said son Joseph shall take the other equal share thereof each of which said equal shares shall pass to and vest in the Trustees herein appointed and their heirs respectively subject to the restrictions and limitations and for the uses herein declared in like manner as if the same had been so devised in the first instance, that is to say the Trustees for my said sons Charles Samuel Isaac George and Henry to take in trust for the use of my said sons Charles Samuel Isaac and George in equal parts and for the uses hereinbefore mentioned and the Trustees for my said son Joseph to take in trust for the like uses that hereinafter mentioned.”

Joseph Parker Norris, Jr., died in January, 1863, leaving children; Samuel Norris died in December, 1866, without issue; Charles Norris died in June, 1868, intestate, leaving children; George Norris died in 1875, testate, leaving children; Isaac Norris died in July, 1890, testate, leaving children; and Henry Norris died in December, 1904, without issue.

The fund for distribution represents Henry’s one-sixth interest in Fairhill, devised to trustees for him by his father, and the one-fifth of the one-sixth which passed to them for him upon the death of Samuel. In the court below this fund was awarded to the issue of all of the testator’s deceased sons per stirpes. The descendants of Joseph Parker, Jr., claimed the entire fund to the exclusion of the descendants of their father’s three brothers, and this claim of the appellants, disallowed below, is now before us. Whether it is to prevail must depend upon the proper interpretation of the will of the testator, which makes the ultimate disposition of the interest in the Fairhill estate enjoyed by Henry at the time of his death.

After the death of Samuel Norris in 1866, proceedings were instituted for the partition of the interest in Fairhill devised by his father in trust for him. The surviving brothers and the representative of Charles, then also deceased, sought to exclude the children of Joseph Parker, Jr., from participation in this estate, contending that, under the limitation in the will of the testator, the share of Samuel in Fairhill was divisible among the surviving sons and the children of Charles, to the exclusion of the children of Joseph Parker Norris, Jr. It was held by this court unanimously that the children of Joseph Parker, Jr., were entitled to a one-fifth share of Samuel’s interest: Horwitz v. Norris, 60 Pa. 261. The court, however, divided upon an interpretation of the will, the majority so interpreting it as to give to the appellants what they now claim; and one of their contentions is that, as their right to the one-fifth of Samuel’s share enjoyed by Henry and his own one-sixth is res adjudicata, the whole fund must be awarded to them under the doctrine of stare decisis.

It is not necessary for us to decide whether the claim of the appellants is res adjudicata. I do not think it is, because the question now before us was not and could not have been before the court then. Henry was then living, as were Isaac and George, and the question of where his interest should go if he should die childless was not then a matter for the court’s determination, for it was not involved in the controversy before it. We differ, however, as to this, but the majority of the court agree in adopting the interpretation of the will as made by Mr. Justice Agnew, while not binding upon us in deciding the question before us, as the only one that we can now give to the will if we are to read it as the testator wrote it and are tó direct that what is left of Fairhill shall go where he said it should go ; and we adopt bodily what Judge Agnbw says as expressive of our views in this contention. His interpretation is unanswerable, because he read the will just as the testator had written it in words free from all doubt.

If the appellees are to participate in this fund, they must point to their right to do so in the will. The court below properly sustained their contention that it is no part of the residuary estate of the testator, and, if it is not, what clause in the will gives any of it to them i The only clause to be read in determining where the fund shall go is the one quoted. The clauses as to the other sons under whom the appellees claim are exactly like it.

The words of the testator are that, upon the death of Henry, “ without leaving a child or children or a grandchild or grandchildren living at his death then that one of the said five-sixth parts of the lands tenements and premises aforesaid called Eairhill shall go to and be equally divided among my said other sons Charles Samuel Isaac and George or such of them, as shall be then living and the trustees hereinafter mentioned for my said son Joseph Parker Norris junior in equal parts so that the then survivors of my said four sons Charles Samuel Isaac and George shall each take one equal share and the Trustee for my said son Joseph shall take the other equal share thereof.” No child of a deceased son can possibly take under these words. They are not contradictory of nor irreconcilable with any other clause of the will, and stand out alone as the clearly expressed intention of the testator, which will not down even before theories of distinguished and learned judges that would override them. The testator twice declares in the same clause, in disposing of Henry’s interest in Eairhill, that it shall be divided among the surviving brothers and the trustees of Joseph and what he means by his surviving sons is not open to any other interpretation than his sons who might be living at the time of Henry’s death, for he designates them as the sons then living ” and the then ” surviving sons. How, under a theory that, as the testator must have meant equality among his children, any other than their plain and literal meaning can be given to these words, and how they can be held to embrace children of sons who at the death of Henry were not “ then living,” were not then ” surviving, ought to be inconceivable to the judicial mind. No theory of what a testator meant can receive judicial consideration, when what he says can have but one meaning, whether read by layman or lawyer.

We need not follow what was said in Horwitz v. Norris, to show that the testator may not have intended equality, as, for instance, in devising Sepviva to his daughters, there is greater inequality, “ even more glaring than as to Fairhill” nor need we refer to the reasons given by the court which may have led the testator to make a distinction in favor of the children of his son Joseph. He had a right to distribute his estate unequally, and he had a right to do so for any reason that may have seemed sufficient to him, without stating it in his will. He must have had some reason for disposing of Eairhill as he did; but whether he had or had not is not a question at all for us. We are to determine only what was his intention as expressed in the words of his will, and if their meaning is free from all doubt, the intention expressed by them must be carried out.

If the testator had intended that the children of a son dying before his childless brother should participate in the interest of such deceased childless son, he naturally would have said that such share should be divided among the surviving sons and the issue of such as were deceased per stirpes. In disposing of Sepviva to his seven daughters and in providing what should become of the share of a daughter dying without issue and without exercising her power of appointment, he gives an interest to the children of surviving daughters, and, in doing so, directs that the lawful issue of any child or children that may be dead shall take with the surviving children such share as their parent would have taken if living. This is only corroborative, but strongly so, that he intended by his words as to Eairhill to include only surviving sons. If he had intended to embrace the issue of deceased sons, he would certainly have said so, as he did in the clause following in which he disposes of Sepviva. But it is not for us by any effort to attempt to show that Henry’s share can go only to his surviving brothers and the trustees of Joseph, for such an effort would in itself cast doubt upon the meaning of the words absolutely free from it. They speak for themsel ves and need no interpretation.

The testator directed that, if his son Henry should die without leaving a child or grandchildren, whatever interest he enjoyed in Fairhill at the time of his death “ shall pass to and vest in the Trustees herein appointed and their heirs respectively subject to the restrictions and limitations and for the uses herein declared in like manner as if the same had been so devised in the first instance,” and it is argued that this means that, upon the death of a son without issue, his share must be regarded as never having been in trust, but as having been devised by the testator in the first instance to the trustees for the other sons. The answer to this is, that the will directs it to go to the trustees, 'who are to hold it subject to the same restrictions and for the same uses as the devise of the one-sixth to each of the sons. At the death of Henry, there was no trustee for Charles or Isaac or George. The trust for each brother, except Joseph, ceased at his death with issue. It is further contended that the testator did not intend to exclude the issue of a deceased son from the distribution of a childless son’s share because he added: “ That is to say the Trustees for my said sons Charles Samuel Isaac George and Henry to take in trust for the use of my said sons Charles Samuel Isaac and George in equal parts and for the uses hereinbefore mentioned and the Trustees for my said son Joseph to take in trust for the like uses that hereinafter mentioned.” The meaning of these words is also clear. Immediately preceding them is a direction that the surviving sons shall each take an equal share with the trustees for Joseph of the interest of the deceased childless son, and that he might not be misunderstood as giving such share to the sons absolutely, but to trustees for them, the testator proceeds to say: That is . . . . the Trustees for my said sons,” emphasizing his intention that the shares of the sons, whether coming to them in the first instance upon his death or through the death of a childless brother, should not vest absolutely in them, but should go to the trustees named for them.

While only surviving sons can, through their trustees, participate in the share of a deceased childless son, no such restriction is placed upon the trustees of Joseph’s share. What is res adjudicata in Horwitz v. Norris, concurred in by the whole court, is that, as to Joseph’s share, though he was dead at the time Samuel’s share was being divided, the trust as to his share continued to exist as a scintilla juris to pass the estate to his descendants. That trust continues, to pass Henry’s share in Fairhill into the same channel, and the trustees of Joseph alone can take it, for no other son of the testator survives and nothing passes to his descendants. But one interest out of five that might partake in the share of a son dying without issue now remains, and under the express words of the will, there it must go.

The decree of the court below is reversed, and it is directed that the record be remitted that distribution may be made in accordance with this opinion.

Mestrezat, J.,

dissenting:

I concur in holding that the claim of the appellants is not res .judicata, but I do not agree with the majority of the court in holding that Henry Norris’s share in Fairhill passes entire to the trustees of Joseph Parker Norris, Jr., for the latter’s descendants. This, in my judgment and with deference to the views of the majority of the court, is a strained and artificial construction of the will, not warranted by the settled rules of interpretation, and manifestly defeats the intention of the testator. It gives force and effect to an assumed meaning of one part and disregards the explicit language of the other part of the very clause of the devise which passes the estate in controversy. It ignores equality among children, the primal thought of every parent, and creates a distinction among them without any apparent reason whatever, a direct violation of a universally recognized rule of construction. It gives the estate to the descendants of a discredited son to the exclusion of the descendants of other sons who were in equal if not greater favor with the testator.

I think it clear from the language used in this clause of the will and from the tenor of the entire instrument that the testator intended equality among his sons and their descendants in Fairhill, and that upon the death of either of the sons without issue his share should vest in the trustees, distributable among the remaining sons and the issue of deceased sons. The able and convincing opinion of Hr. Justice Shaeswood, concurred in by Chief Justice Thompson, in Horwitz v. Norris, 60 Pa. 261, leaves nothing to be said in support of the conclusion of the common pleas in this case, and for the reasons there given I would affirm the decree of the court below.


text:
    Norris’s Estate
    (No. 2).
    April 22, 1907:
    Argued Jan. 22, 1907.
    Appeals, Nos. 349, 353, 354, 355, 357 and 360, by Charles Cambios Norris, M. I)., et al. from decree of C. P. No. 3, Assignee’s and Trustee’s Docket F. (O. C. P.) 1863-1869, No. 28, dismissing exceptions to auditor’s report In the Matter of the First and Final Account of Henry Norris, trustee of the Fairhill Estate of Henry Norris under the will of Joseph Parker Norris, the elder, deceased, filed by his executors, J. Parker Norris and Holstein Dellaven.
    Before Mitchell, C. J. Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Appeal dismissed.

      Thomas Learning, for Charles Cambios Norris, M. D., appellant.

      William Drayton, for Elizabeth N. Brown, appellant.

      Henry S. Drimiker, Jr., with him II. Gordon MeCouch and Samuel Diokson, for Charles Norris et al., appellants.
   Opinion by

Mr. Justice Brown,

As the appellants have no interest in the fund to be distributed, for reasons given in the opinion in the appeals of Orville Horwitz et al., ante, p. 548, filed herewith, these appeals are dismissed, with costs.


author: Mr. Justice Fell,

text:
    Norris’s Estate
    (No. 3).

      Will — Legacy-Gift of residuary estate — Codicil.
    Where a testator gives a legacy of a specified amount and also one-half of his residuary estate, to his sister, and by a codicil gives to two nieces and a nephew “the legacy which I have left to my sister,” share and share alike, the word “legacy” in the codicil will, in the absence of any ■ contrary intent, be construed to include not only the money legacy in the will, but the gift of half of the residuary estate.

      Wills — Disinheriting heirs — Presumption.
    The presumption against an intention to disinherit heirs is weakened by the fact that a testator by his will excludes four-fifths of his relatives from any participation in his personal estate. This presumption has force where no clear disposition has been made and one is to be inferred from some provision of a will; it is without application where it is apparent that the real intention of the testator, was to favor some to the exclusion of others.
    Argued Jan. 23, 1907.
    Appeals, Nos. 232, 233 and 234, by Sarah E. Hale, John Lambert and Elizabeth Norris, from decree of O. C. Phila. Co., Jan. T., 1906, No. 383, dismissing exceptions to adjudication, in estate of Henry Norris, deceased.
    Before Mitchell, C. J., Pell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Exceptions to adjudication.
    From the adjudication of Hanna, P. J., and Ashman, J., the auditing judges, Penrose, J., and Dallett, J., dissented.
    The opinion of the Supreme Court states the case.

      Error assigned was decree dismissing exceptions to adjudication.

      G. W. Pepper, for Sarah E. Hale, John Lambert and Elizabeth Norris, appellants.

      George Qumtard Horwitz, with him Layton Martin Sehoeh, for Leila H.'Sharpless, Orville Horwitz and George Quintard Horwitz, appellees.

      Samuel Dickson, for Charles Norris, Charles Norris the younger, Dorothea Clapier Norris, Fanny Norris, Joseph P. Norris and Mary Norris Cochran, appellees.

      April 22, 1907:

      John J. Ridgway, for T. Parker Norris, appellee.

      W. Drayton, for Elizabeth Brown, Mary Brown, Eanny Brown, Emily H. Glover, B. Dawson Coleman, Edward R. Coleman, Eanny B. Coleman, Harriet Glover and Anne C. Carvello, children and grandchildren of Deborah Brown, a sister of testator, appellees.

      Hampton L. Carson, for Lewis H. Parsons and Mary N. Parsons, appellees.

      Thomas Ridgway, for Charles Cambios Norris, appellee.

      Isaac Norris, for Isaac Norris, M. D., appellee.
   Opinion by

Mr. Justice Fell,

The disposition of these a.ppeals depends upon the meaning to be given the word “ legacy ” in the second codicil of the testator’s will. The will and the codicils thereto were written by the testator, who ivas an intelligent man, experienced in the business management of estates. At the date of his will, April 29, 1891, his nearest of kin were two sisters. His nephews and nieces and grandnephews and nieces numbered about fifty. His estate consisted of personal property only. He gave to each of his sisters $200,000; to each of three nieces and nephews and to one grandnephew, $50,000; and to each of three grandnieces $25,000. He gave to a friend $25,000, and to four charities $5,000 each. The residue of his estate, approximately $3,000,000, he gave to his sisters. He attempted by his will to dispose of a large estate known as Fairhill, in which he had only a life interest. This he gave to the children of four deceased brothers.

Upon the death of one of his sisters in 1899 he wrote the first codicil to his will, in these words: I give and bequeath to the daughters of my sister, Sally N. Pepper, the legacy which I have left to her, share and share alike.” Upon the death of his other sister, who died unmarried and without issue in 1901, he wrote the second codicil, as follows : “I give and bequeath to my nieces, Sarah E. Hale and Elizabeth Norris, and to my grandnephew, John Lambert, Jr., the legacy which I have left to my sister, Emily Norris, share and share alike.” In the same year the testator made two other codicils ; by one he gave small legacies to household servants, and by the other he gave to the wife and son of a nephew who had died the legacy which he had given to him. The testator died in 1904.

It is conceded that the Act of May 6, 1844, P. L. 564, secures to the children of Mrs. Pepper the legacy given her by the will. The question in the case is whether the word “ legacy” in the second codicil refers only to the bequest of $200,000 to Miss Norris, or whether it includes the gift of one-half of the residuary estate. If restricted to the first, it follows that there was an intestacy as to one-half of the residue.

In seeking the intention of a testator the exact words he has used should first be considered, and in doubtful cases they should be given their technical meaning on the presumption that he used them in that sense. A legacy is a testamentary gift of personal estate. It is a generic term, and includes residuary as well as general, specific and pecuniary bequests. As used in the act of 1844 in relátion to bequests to brothers and sisters of a testator who die in his lifetime leaving issue, and in its strict technical sense, it applies to any testamentary gift of personal estate. In its appropriate and technical use it includes everything the testator bequeathed to his sister. From the use of this word in the body of the will we find no indication of an intent to give it a restricted meaning in the codicils. Its first use is in the plural in the clause, “ I give and bequeath the following legacies.” This is followed by the naming of legatees and the amounts given to each and by the residuary clause. Its second use is in the direction that all these legacies shall be paid clear of the collateral inheritance tax. If this direction had preceded the gift of the residue, it would indicate a separation of it in the mind of the testator from the preceding gifts but since it follows it, all the gifts are left in the same class under the head of legacies, although the burden of the tax is placed on the residue.

The scheme of the testator’s will is very clearly defined. He separated what he regarded as his purely personal estate from an estate which he had derived from his father, which he supposed he could dispose of. lie gave the first, excepting $45,000, to his sisters and to ten favored relatives. He gave the second to the children of his deceased brothers. He knew very clearly what he wanted to do with his estate, and he disposed of the whole of it by a will that was entirely free from ambiguity. At the death of Mrs. Pepper he naturally desired that her children should take what he had given to her. He was an old man when he made his will, and in the course of nature his sister would not long survive him to enjoy the gift; her children were the persons who would be benefited ultimately by the gift. If he wrote the first codicil with knowledge of the act of 1844, he was making more secure the disposition he had in mind of the whole gift. It cannot be assumed that he intended to divide it into two parts, and have the word “ legacy ” apply to one and leave the other to the operation of the act of assembly. If he wrote the codicil in ignorance of the act, and intended the word “ legacy ” to apply only to the bequest of $200,000, he meant not to continue the gift to his sister of one-half of the residue to her children, but to die intestate as to $1,500,000 of his estate.

The word was used in the second codicil in the same sense as in the first. The reason for continuing the gift to particular persons is not so manifest, but their selection was a matter of personal preference. The consequence of the separation of the gift into two parts, by limiting the word “ legacy ” to the pecuniary bequest only, would be the same, an intestacy as to one-half of the residue. The natural presumption that when a man makes a will he intends to dispose of his whole estate, unless the words he uses will not admit of sucia a construction, is strengthened by the fact that the testator in clear and unambiguous terms made a final disposition of all he possessed. The presumption against an intention to disinherit heirs is weakened by the fact that by his will the testator excluded four-fifths of his relatives from any participation in his personal estate. This presumption has force where no clear disposition has been made and one is to be inferred from some provision of a will; it is without application where it is apparent that the real intention of the testator was to favor some to the exclusion of others.

Our conclusion is that the testator used the word legacy ” in the second codicil of his will in its broader sense, and that it includes the whole gift to his sister, Miss Norris.

The decree of the court is reversed, and distribution will be made in accordance with this opinion.


author: Mr. Justice Elkin,

text:
    Lamb, Appellant, v. Philadelphia & Reading Railway Company.

      Negligence — Master and servant — Railroad—Evidence—Nonsuit.
    In an action against a railroad company by one of its employees, to recover damages for personal injuries, sustained by the giving way of a portion of a roof of a roundhouse while the plaintiff was working thereon, it is reversible error to refuse to permit the plaintiff to testify that prior to the accident for a period of almost two years, he had never seen anyone inspecting or repairing the roof, and also to exclude the testimony of another witness to the effect that during the month preceding the accident he saw glass and metal which were part of the roof frequently falling to the floor of the roundhouse.
    In such a case it is not necessary to show the condition of the exact spot where the injury occurred, but it is proper to prove the bad condition of other portions of the roof similarly situated and affected as that in the immediate vicinity of the accident.
    Argued Jan. 23, 1907.
    Appeal, No. 67, Jan. T., 1906, by plaintiff, from order of C. P. No. 5, Phila. Co., Deo. T., 1903, No. 1,751, refusing to take off nonsuit in case of Frank J. Lamb, by his mother and next friend, Eleanor A. Gordon, v. Philadelphia & Reading Railway Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for death of plaintiff’s son. Before Martin, P. J.
    The circumstances of the accident are stated in the opinion of the Supreme Court.

      Errors assigned among others were (3, 4, 9) rulings on evidence referred to in the opinion of the Supreme Court; and (1) refusal to take off nonsuit.

      Russell Duane, of Duane, Mortis, Heckscher cfo Roberts, for appellant.
    The duty of an employer to provide a safe place for an employee to work in, and to maintain it in a reasonably safe condition by inspection and repair is a direct, personal and absolute obligation from which nothing but performance can relieve him: Lillie v. American Car & Foundry Co., 209 Pa. 161; McKee v. Crucible Steel Co., 213 Pa. 333; O’Brien v. Sullivan, 195 Pa. 474; Morgan v. Westmoreland Electric Co., 213 Pa. 151.
    Defendant was negligent in not causing this roof to be either inspected or repaired during a period of several years prior to plaintiff’s accident: Honifius v. Chambersburg Engineering Co., 196 Pa. 47; Baker v. Allegheny Valley R. R. Co., 95 Pa. 211; Bier v. Mfg. Co., 130 Pa. 446; McGuigan v. Beatty, 186 Pa. 329; Raymer v. Standard Steel Works, 216 Pa. 101; Dyer v. Bridge Co., 198 Pa. 182; Newton v. Iron Works, 199 Pa. 646; Finnerty v. Burnham, 205 Pa. 305; Morgan v. Westmoreland Electric Co., 213 Pa. 151; Weller v. Aberfoyle Mfg. Co., 28 Pa. Superior Ct. 102.
    Proof that the roof of this roundhouse was in a condition of general nonrepair was ample to charge defendant with negligence: Gilton v. Hestonville, etc., Pass. Ry. Co., 166 Pa. 460; Horton v. Hall, 1 Penny. 159; Fitzpatrick v. Riley, 163 Pa. 65; Mixter v. Imperial Coal Co., 152 Pa. 395; Lohr v. Philips-burg Borough, 165 Pa. 109; Davidson v. Sanders, 1 Pa. Superior Ct. 432; McClosky v. Dubois Borough, 4 Pa. Superior Ct. 181; Potter v. Nat. Gas Co., 183 Pa. 575; Biley v. Iowa Falls, 83 Iowa, 761 (50 N. W. Repr. 33); Campbell v. Kalamazoo, 80 Michigan, 655 (45 N. W. Repr. 652); Marsh v. Lehigh Valley R. R. Co., 206 Pa. 558; Diver v. Singer Mfg. Co., 205 Pa. 170; McCoy v. Ohio Valley Gas Co., 213 Pa. 367.

      Gavin W. Hart, for appellee.
    The nonsuit was properly entered: Frazier v. Lloyd, 1 Mona. 113; Burrell v. Gowen, 134 Pa. 527; Augerstein v. Jones, 139 Pa. 183; Simpson v. Locomotive Works, 139 Pa. 245; Mensch v. R. R. Co., 150 Pa. 598; Mixter v. Coal Co., 152 Pa. 395; Ash v. Verlenden, 154 Pa. 264; McKenna v. Paper Co., 176 Pa. 306; Wojciechowski v. Refining Co., 177 Pa. 57; Nye v. R. R. Co., 178 Pa. 134; Johnston v. Coal Co., 183 Pa. 623.

      April 22, 1907:
   Opinion by

Mr. Justice Elkin,

The appellant, Lamb, a boy eighteen years of age, while in the employ of the defendant company, was ordered by its foreman to- clean the skylights which made the roof of a certain roundhouse belonging to the appellee. According to his testimony he was standing on a skylight cleaning it with a mop, when one of the sashes suddenly gave way and he fell to the floor below sustaining severe injuries for which damages are claimed in this action. The negligence complained of is that appellee had negligently and carelessly permitted the skylights to fall into such a condition of nonrepair and to become so weakened and defective as to make them an unsafe place on which to work. The roof of the roundhouse was cone shaped and almost entirely covered with skylights, each skylight being between five and six feet long and- three feet wide,, and supported and kept in place by strips of metal about an inch and a half wide and extending the length of a skylight. Testimony was introduced in the court, below tending to show that the smoke or soot emitted by the locomotives which passed in and out of the roundhouse had caused these metal strips or frames to rot or corrode, and as a result thereof the roof was in a condition of decay and nonrepair; that pieces of glass and metal strips were constantly falling down from the skylights, and that prior to the date of the accident there had been no inspection of the skylights or repair of the defective conditions. At the trial a compulsory nonsuit was entered on the ground that there was no evidence to show what caused the accident. The ruling of the learned trial judge in this respect, and also his refusal to admit the testimony on behalf of the plaintiff relating to the failure of the defendant to make proper inspection or repair, and also as to the general bad condition of the roof, have been assigned for error.

The third and fourth specifications of error relate to the refusal of the trial judge to admit the-testimony of the plaintiff tending to show that prior to the accident the roof of the roundhouse had not been inspected or repaired by the defendant company. The appellant was not permitted to testify that during the time of his.employment at the roundhouse for a period of almost two years, with many opportunities to observe the skylights, he had never seen anyone inspecting or repairing them. This testimony should have been admitted, and it was error to exclude it. It was proper to show these facts, which, taken in connection with other evidence in the case, should be considered by the jury in determining the question whether proper inspection had been made and a reasonably safe place provided.

The ninth specification of error relates to the action of the trial judge in striking out all the testimony of the witness Daily with regard to the condition of the roof. The substance of Daily’s testimony is that during the month preceding the accident he saw pieces of glass from the skylight and of metal strips which supported the same, frequently falling to the floor of the roundhouse. lie also saw pieces of these metal strips protruding downward from the skylights. The testimony was introduced for the purpose of showing the bad condition of the roof. It was stricken out apparently on the ground, as stated by counsel for defendant company in making the motion, that it was introduced upon the assurance of counsel for plaintiff that expert testimony would be introduced to show that the condition Mr. Daily found was caused by something which the expert would testify about. The expert, Link, previously called by the plaintiff, did testify as to the cause of the bad condition of the roof, and what produced it, and we can see no sufficient reason why the testimony of Daily should have been stricken out. This testimony, showing the defective condition of the skylights in conjunction with that of the expert Link showing what caused the condition, was clearly admissible. Even though the expert testimony had not been introduced to show what caused the roof to fall into a state of decay and nonrepair, the testimony of Daily as to the general bad condition of the roof was admissible. Nor do we agree under the facts of this case that it was necessary to show the condition of the exact spot where the injury occurred, but it was proper to prove the bad condition of other portions of the roof similarly situated and affected as that in the immediate vicinity of the accident. This would come clearly within the rule stated in 21 Am. & Eng. Ency. of Law (2d ed.), 518, wherein it is said: “Where also, from evidence of the condition or quality of other portions of the structure or premises than that immediately causing the injuries, it is reasonable to infer the condition or quality of the portion directly involved, at the precise point or place where the injuries occurred, such evidence is proper for the consideration of the jury.”

Under all the circumstances of this case, it was for the jury to say whether there had been sufficient inspection, and whether the roof was a reasonably safe place on which to work.

The first, third, fourth and ninth assignments of error are sustained.

Judgment reversed and a venire facias de novo awarded.


text:
    Lockney v. Police Beneficiary Association, Appellant.

      Beneficial associations — Forfeiture of membership — Notice of assessments — Police beneficiary association — Custom.
    The by-laws of a police beneficiary association provided that assessments should be paid by members of the police force who were members of the association, on the second Monday of the month; while ex-members of the police force who were members of the association should pay within thirty days after notice. Notice of the assessment was read over the desk at the station house to all the policemen, and a copy of the same was posted on the bulletin board in the station house. It did not appear that there was any provision of the by-laws as to the kind of notice to be given to an ex-member. There was evidence tending to show that for a number of years the posting of the notice on the bulletin board was the customary and usual method of informing ex-members that an assessment had been levied. An ex-member was expelled for the nonpayment of an assessment. He subsequently died, and his widow brought suit for death benefits. Held, (1) that the question as to whether a custom as to notice had been established was for the jury; (2) that the question whether the notice given was sufficient was for the jury; and (3) that a verdict and judgment for plaintiff should be sustained.
    In order to establish the validity of a custom or usage it must have existed so long as to have become generally known, and it must be clearly and distinctly proved.
    Argued Jan. 24, 1907.
    Appeal, No. 247, Jan. T., 1906, by defendant, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1903, No. 3,696, on verdict for plaintiff in case of Annie Lockney, known as Annie Loughney, v. Police Beneficiary Association.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover death benefits. Before Willson, P. J.
    The facts are stated in the opinion of the Supreme Court.
    The defendant presented, inter alia, the following points:
    2. If the jury find and believe that J ohn Lockney on August 1, 1898, became a member of the police beneficiary association, and was a police officer connected with the police district station at Twentieth and Federal streets, and continued to be connected with that station as an officer until he severed his connection with the police department in February, 1899, and that all notices for payments of assessments for the said John Lockney, as well as for the other members of the police beneficiary association connected with that station, were sent to the said station during the whole of that period and continued so to be sent thereafter, that being the adopted manner and custom of sending notices of assessments to the members of the police beneficiary association, and the said J ohn Lockney and the other members receiving all of their notices in that way, and all payments of assessments that were made being paid to delegates at the said station, the notice for the payment of assessment of $4.00, sent on November 28, 1900, to the said station, was a notice to the said John Lockney, and the said assessment not having been paid on or before January 10,1901, the plaintiff cannot recover and the verdict must be for the defendant. Answer: It is pretty hard to answer that point. If all the matters which are involved in that point are believed by you to be true, and particularly if you believe, as I have said before, that there has been an established, understood custom, practice, that the notice to be given to the members and ex-members of that association that assessments were made, was by reading them out from the desk in the station house or by posting them there, then I affirm that point. [4]
    3. When the said John Lockney severed his connection with the police department, if he desired notices for payment of assessments to be sent to an address other than that in the adopted and accustomed place and manner, viz.: to the police district station, Twentieth and Federal streets, where he had always been notified from the commencement of his membership in August, 1888, to February, 1899, when he ceased to be a police officer, he should have requested the proper officer of the police beneficiary association to send his notices to the other or new address, and if the jury find and believe that the said John Lockney did not request his notices to be sent to an address other than the accustomed address, viz.: the said star tion at Twentieth and Federal streets, then a notice sent to the said station was a sufficient notice to the said J ohn Lockney and the assessment levied for November, 1900, of $4.00, not having been paid on or before January 10, 1901, the plaintiff cannot recover and the verdict must be for the defendant. Answer: I affirm that just as I did the second point, if you believe that the testimony shows that there had been an established, understood way of giving notice at the station house, which would be exclusive of other notices. [5]
    4. If the jury find and believe that the said John Lockney paid all of his assessments at the district station at Twentieth and Federal streets that were made upon his membership certificate sued upon in accordance with notices sent to the said station, and the said John Lockney neglected to pay the sum of $4.00, being assessment for the month of November, 1900, notice of which was sent to said station on November 28,1900, then there can be no recovery by the plaintiff, and the verdict must be for the defendant. Anwer: I decline that point. [6]
    Verdict and judgment for plaintiff for $2,059.20. Defendant appealed.

      Errors assigned were (4, 5, 6), above instructions, quoting them.

      Frederick A. Sobernheimer, for appellant.
    The payment of assessments or dues is necessarily a voluntary one. The member may pay, or not, as he pleases, and the membership continues only so long as he continues to pay the assessments. It is the duty of a member to keep himself informed and advised as to whether he is in arrears for assessments, or not. Upon his becoming a member he subscribes to the by-laws and is hound by them. The certificate of membership is issued subject to the conditions contained in the by-laws: Rhule v. Diamond Colliery Accidental Fund, 13 Pa. Superior Ct. 416; Dickinson v. A. O. U. W., 159 Pa. 258; Lantz v. Ins. Co., 139 Pa. 516; Duffy v. Alta Friendly Society, 17 Pa. Superior Ct. 531; Hansen v. Supreme Lodge, 40 Ill. App. 216; Supreme Lodge v. Keener, 25 S. W. Repr. 1084; Beeman v. Supreme Lodge, 29 Pa. Superior Ct. 387.
    April 22, 1907:

      Joseph II. Tcmlane, of White, White & Taulane, with him Ernest E. Prevost, for appellee.
   Opinion by

Mr. Justice Elkin,

John Lockney, the husband of appellee, was a police officer in the city of Philadelphia, and became a member of the police beneficiary association in 1888. He was discharged from the police force in 1889, but under the by-laws of the association he then became an ex-member. The right of the appellee, his wife, the beneficiary named in his certificate of membership, to receive the amount named therein, was in no way impaired by the fact that he was discharged from the police force, provided, however, that he was in good standing in the association at the time of his death. The principal question for determination in this case is whether proper notice of an assessment had been given to the husband of appellee. It appears from the evidence that when a death occurs in the association an assessment of fifty cents is made upon each member, and the secretary of, the association transmits, by telegraph, a notice to the lieutenant or superintendent in charge of the various police stations, to collect from each member the amount of the assessment so levied. When this notice is received at the police station it is read over the desk to all the policemen, and a copy of the same is posted on the bulletin board in the station house. The only notice given to the husband of appellee of the assessment of December, 1900, was by reading and posting on the bulletin board in the station house as above described, which, it is contended, was all the notice required under the circumstances of this case. It must be conceded, that if proper notice was given to appellee’s husband, his failure to pay the assessment within thirty days after such notice made him liable to expulsion, and the act of the association in expelling him at their meeting on January 14, 1901, was within the power of the association under its by-laws. On the other hand, if proper notice was not given him, his expulsion was illegal, and notwithstanding the same he continued in good standing until the time of his death, and the beneficiary named in the certificate of membership would be entitled to recover from the association the amount due her under the terms thereof. The by-laws of the association, relating to the question of notice, provide: Any member of the department failing to pay his annual dues or assessments on the second Monday of the month, shall be expelled, and his beneficiary certificate shall be null and void; provided that this does not apply to ex-members of the department who shall have thirty days from date of notice to make payments.” It will be observed that the by-law does not specify the kind of notice nor the manner in which it is to be given an ex-member, but it does expressly provide' that ex-members shall have thirty days after notice to pay the assessment, and it is therefore incumbent on the association to give ex-members notice of the assessments levied upon them, in order that they may be informed thereof, and have an opportunity to pay the 'same within the thirty-day limit. The by-law clearly contemplates a different method of dealing with members and ex-members. Members pay on the second Monday of the month, while ex-members pay within thirty days after notice. It is perfectly clear that an ex-member is not liable to páy an assessment until he has notice of the same, either actual, or according to the by-laws and regulations of the association. In the case at bar the husband of appellee did not receive actual notice; the by-laws of the association are silent on the subject of the kind of notice to be given to an ex-member; and the only attempt to prove notice consisted in showing that the call for an assessment had been read to acting policemen and posted on the bulletin board in the station house. It cannot be said, however, that the notice given by reading aloud the call for an assessment in the station house was a sufficient notice to ex-members, for it could not be expected that ex-members, no longer members of the police force, would be present when the notice was read, and they could not, therefore, be charged with notice in this respect. Nor can it be said as a matter of law that the posting on the bulletin board of the fact that an assessment had been called, charged an ex-mernber with notice to pay the assessment. It is true that evidence was introduced on behalf of the appellant tending to show that for a number of years the posting of the notice on the bulletin board was the customary and usual method of informing ex-members that an assessment had been levied. It is argued by the learned counsel for the appellant that Lockney had knowledge of this custom while he was a member of the police force, and must be held to be bound by it, and the fact of the notice having been posted being undisputed, it is contended the court should have withdrawn the case from the jury ánd directed a verdict for the defendant. This position loses sight of the fact that the posting of the notice upon the bulletin board in the station house was primarily intended to give notice to members, and the evidence does not so conclusively establish the fact as to warrant the court in holding as a matter of law that this was a proper and sufficient notice to the husband of the appellee. Whether or not under the evidence in this case a custom was sufficiently and clearly established so as to charge the appellee’s husband with notice of the assessment, was left by the learned court below for determination by the jury, and in this we see no error: McMasters v. Pennsylvania Railroad Company, 09 Pa. 374. In order to establish the validity of a custom or usage it must have existed so long as to have become generally known, and it must be clearly and distinctly proved: Adams v. Pittsburg Insurance Company, 95 Pa. 348.

In the absence of a stipulation in the charter or by-laws of the association providing the method of giving notice to ex-members, it was for the jury, and not for the court to determine, under all the facts of this case, whether or not the notice given was sufficient. The instructions of the learned trial judge fairly and properly left this question to the jury where it belonged.

The argument of the learned counsel for appellant relating to the question whether Lockney had been properly expelled from the association may be conceded to be sound. It is clear that if Lockney had proper notice of the assessment and failed to pay the same within thirty days, the association had a right to expel Mm, and if he had been regularly expelled he would lose all his rights as a member, and his beneficiary would have no claim against the association upon his death. This question, however, need not be given any further consideration, because we have already held that the whole case depends upon the question whether proper notice of the assessment had been given, and if he did not receive proper notice of the assessment, his attempted expulsion was illegal.

Judgment affirmed.


text:
    Winterbottom v. Philadelphia, Baltimore & Washington Railroad Company, Appellant.

      Negligence — Railroads—¡5Signals—Evidence—Negative evidence.

    In an action to recover damages for injuries to a boy run over by a train, where the positive evidence of witnesses for defendant that proper signals were given, is contradicted by two witnesses for the plaintiff, one of whom was seated at a window in her house, near the railroad station, waiting for a friend who was coming on the train, for which she was on the lookout, and who was listening to the signals, and the other of whom was standing at the station waiting for the train, and listening for the signals, the court will not say as a matter of law that the negative testimony produced by the plaintiff is insufficient to overcome the positive testimony of the defendant bearing on the question.
    Argued Feb. 12, 1907.
    Appeal, No. 2, Jan. T., 1907, by defendant, from judgment of C. P. Del. Co., Sept. T., 1905, No. 55, on verdict for plaintiff in case of Jane E. Winterbottom, in her own right, and Francis Maurice Winterbottom, by his mother, Jane E. Winterbottom, v. Philadelphia, Baltimore & Washington Railroad Company.
    Before Mitchell, C. J., Fell, Mesteezat, Pottee, and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries to a boy twelve years old. Before Johnson, P. J.
    At the trial it appeared that the plaintiff, a boy twelve years old, was struck and run over by a train of the defendant company at a grade crossing in the village of Lenni on February 18, 1905, at about seven o’clock in the evening. The evidence showed that he was sledding at the time. All the train hands and four other persons testified that a whistle was sounded at the whistling post, and that a bell was rung as the train approached the crossing. Eight witnesses for plaintiff testified that they did not hear either bell or whistle. The testimony of two of these witnesses is particularly stated in the opinion of the Supreme Court.
    The court refused binding instructions for defendant.
    Verdict and judgment for plaintiff for $3,116. Defendant appealed.

      Error assigned among others was refusal of binding instructions for defendant.

      J. B. Hannum, for appellant.
    The negative testimony produced by the plaintiff was not sufficient to overcome the positive testimony of the defendant as to the giving of signals: Hauser v. Central R. R. of N. J., 147 Pa. 440; Culhane v. R. R. Co., 60 N. Y. 133; Urias v. Penna. R. R. Co., 152 Pa. 326; Hess v. Williamsport, etc., R. R. Co., 181 Pa. 492; Keiser v. R. R. Co., 212 Pa. 409.
    The burden was on the plaintiff to prove negligence: Pletcher v. Traction Co., 185 Pa. 147; Callary v. Easton Transit Co., 185 Pa. 176; Chilton v. Traction Co., 152 Pa. 425; P. & R. R. R. Co. v. Spearen, 47 Pa. 300; Funk v. Traction Co., 175 Pa. 559; Lonzer v. R. R. Co., 196 Pa. 610; Herbstritt v. Lacka. Lumber Co., 212 Pa. 495; Nagle v. R. R. Co., 88 Pa. 35.
    The uncontradicted testimony shows that this plaintiff was making an unlawful use of the railroad tracks of the defendant company at the time that ho was struck by the train: Hestonville Pass. Ry. Co. v. Connell, 88 Pa. 520; B. & O. R. R. Co. v. Schwindling, 101 Pa. 258; Vosburgh v. Moak, 55 Mass. 453; Kessler v. Berger, 205 Pa. 289.

      A. B. Geary, for appellee.
    The testimony of the witnesses who were in a position to hear the whistle and did not hear, and those who were waiting and listening and did not hear, is not negative testimony, but amounts to evidence which was for the jury: Quigley v. D. & H. Canal Co., 142 Pa. 388; Longenecker v. R. R. Co., 105 Pa. 328; Daubert v. R. R. Co., 199 Pa. 345; Kuntz v. R. R. Co., 206 Pa. 162; Kreamer v. R. R. Co., 214 Pa. 219.
    April 22, 1907:
   Opinion by

Mr. Justice Elkin,

The assignments of error raise three questions: first, was there sufficient evidence to go to the jury on the question of the failure to give proper signals before approaching the crossing ; second, even if it be conceded that the signals were not given, was the failure so to do the proximate cause of the accident ; and, third, was the boy making such an unlawful use of the crossing as to relieve defendant company from its duty to give proper signals. The appellant relies on what is termed the negative testimony of the witnesses for appellees to support its contention that there was not sufficient evidence of negligence to go to the jury. Hauser v. Central Railroad of New Jersey, 147 Pa. 440; Urias v. Pennsylvania Railroad Company, 152 Pa. 326; Knox v. P. & R. Ry. Co., 202 Pa. 504; Keiser v. Railroad Company, 212 Pa. 409, are relied on to support this position. It is true the court has said in these and other cases that where the negative testimony produced by plaintiff only amounts to a scintilla, it cannot prevail over the positive and conclusive testimony of a large number of witnesses which clearly establishes the fact that the signals were given. In such cases it is the duty of the court to say as a matter of law that the negative testimony produced by the plaintiff is not sufficient to overcome the positive and conclusive testimony of the defendant bearing on this question. It may also be conceded that in some of the cases it is difficult to determine whether it is a question of law for the court or of fact for the jury. The opportunity of the witness for hearing the signals, the place where he was located at the time, whether he was on the lookout for the train and listening for the signals, are all important matters to be taken into consideration by the trial judge when he is called on to pass upon this question. In every such case it is possible to produce witnesses who can very truthfully testify that they did not hear the signals. Such testimony is of very little value unless the witnesses were in such a location as would make it highly improbable that the signals could have been given without being heard by them. In the case at bar, however, the appellees produced a witness who was seated at a window in her house, near the railroad station, waiting for a friend who was coming on the train, for which she was on the lookout, and who was listening for the signals. Another witness was produced who was standing at the station waiting for the train and listening for the signals. Both of these witnesses testified positively that they did not hear the signals. There were other witnesses to the same effect. Under all the circumstances we think it was a question for the jury to determine. We cannot say under the facts of this case that the failure to give the signals was not the proximate cause of the accident. The boy made the best effort ho could to get out of his peril, even without hearing the signals, and we cannot say as a matter of law that he could not have entirely extricated himself if he had heard the signals in due time. This was also a question for the jury.

On the question of the boy making an unlawful use of the crossing, the court below said that the evidence did not disclose clearly just what he was doing there, and the facts were not sufficient to justify him in saying as a matter of law that the boy was a, trespasser. We do not feel like disturbing the ruling of the court in this respect under the facts of this case.

Judgment affirmed.