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

      Will — Power of appointment — Restriction as to class — Invalid appointment as to portion of estate.

    Where a testator gives his estate to a trustee to pay the income therefrom to his sons and daughters and “ from and after the death of either of my sons or daughters and until the death of all of them to pay the income which he or she would, if living, have received to such person or persons of kin, to such son or daughter as he or she may by will have appointed, and in default of such appointment to the child or children of such son or daughter,” and one of the sons on dying appoints among his own children, but makes an invalid appointment of a share of the income to a person not of the kin of his father, the void appointment will not invalidate the appointments to the children, and the amount of the income invalidly appointed will be divided equally among the son’s children in accordance with the alternative contained in the will of the donor of the power.
    Argued Dec. 14, 1908.
    Appeal, No. 99, Jan. T., 190*8, by Helen Freeman Brewster, from decree of O. C. Phila. Co., Jan. T., 1881, No. 228, dismissing exceptions to adjudication in estate of Henry G. Freeman, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to adjudication.
    The facts appear by the report of Freeman’s Estate (No. 1), ante, p. 31.

      Error assigned was in dismissing exceptions to adjudication.

      John Marshall Gest, for appellant.
    In this argument we assume that the appointment made in favor of Mary Anne Williamson, the adopted daughter, is invalid, and the only question is, what is the effect of this invalidity upon the exercise of the appointment as a whole. We maintain with special reliance upon the decision in Rogers’s Estate, decided by this court in 31 Pa. Superior Ct. 620, which was affirmed by the Supreme Court in 218 Pa. 431, that the appointment was defectively exercised by James B. Freeman, and therefore the alternative provision in the will of Henry G. Freeman takes effect and the fund should have been equally awarded among James B. Freeman's actual children: Varrell v. Wendell, 20 N. H. 431; Stephenson v. Richardson, 88 Pa. 40; Hamilton v. Royse, 2 Sch. & Lef. 315.

      Joseph deF. Junhin, for appellee.
    July 14, 1909:
   Opinion by

Porter, J.,

The provisions of the will of Henry G. Freeman, deceased, as well as those of the will of James B. Freeman, the donee of a power of appointment under the former will, have been fully stated in the opinion disposing of the appeal of Mary Anne Williamson from this same decree of distribution, and it is not necessary that they should here be repeated. We have in the appeal of Mary Anne Williamson affirmed the ruling of the court- below, holding that the appointment of eight-thirtieths of the income of the estate to Mary Anne Williamson by the will of James B. Freeman; was not within the power conferred by the will of Henry G. Freeman, and was, therefore, void. Helen Freeman Brewster, the appellant, is a daughter of James B. Freeman, to whom his will appointed three-thirtieths of his share of the income of the estate. The court below sustained the appointments made by the will of James B. Freeman to and among his children, which aggregated tweiitytwo-thirtieths of his entire share of the income, and held the appointment to Mary Anne Williamson, an adopted daughter, of the remaining eight-thirtieths invalid and decreed that that part should be equally divided among all the surviving children of James B. Freeman, under the alternative bequest over, upon the failure of James B. Freeman to validly appoint, contained in the will of Henry G. Freeman. The appellant contends that because the will of James B. Freeman appointed a part of the income to Mary Anne Williamson, who was not an object of the power, that the appointments of the several parts of the income to those who were objects of the power are thereby also made invalid; that all the appointments are void, and that the entire income must be distributed under the alternative bequest in the will of the donor, equally among all the surviving children of James B. Freeman.

The power conferred by the will of Henry G. Freeman was restricted in one respect only; the appointee must be “of kin” to the appointer. The donee might appoint to one person within the class to the exclusion of all others; he was vested with a discretion to select as well as distribute. James B. Freeman was authorized to appoint to one of his children alone, to distribute the income among them in any proportions he saw fit, or to appoint to some collateral blood relative, to the exclusion of all his children. His discretion to dispose of the subject of the power was absolute, although the object or objects of the appointment must be a person or persons within a certain class. The power here involved is essentially different"’ from that which was considered in Rogers’s Estate, 31 Pa. Superior Ct. 620, and 218 Pa. 431; and the alternative bequest over in the will of the donor in the present case contains no such controlling provisions as were found in the will of-Sarah Jane Rogers. The appellant asserts that because the appointment by the will of James B. Freeman was in part invalid that all the appointments made, even to persons who were proper objects of the power, must necessarily fall, and cites the decision in Rogers’s estate as authority for that contention. That proposition can find no support in any proper consideration of the decision upon which the appellant relies. The appellant seems to have taken in the court below the same superficial view of the question considered in Rogers’s estate, and we find in the opinion of the learned judge of the court below this language: “The report of Rogers’s Estate, 218 Pa. 431, supposed to be in conflict with the authorities above referred to, is very meager and unsatisfactory. It does not give the details of the appointment to the relatives of the father of the donor, nor state the provisions of the donor’s will as to the persons taking in default of appointment.” We deem it here only fair to say,.that for any faults found in that decision the blame should not be placed upon the reporter. The details of the appointment to the relatives of the father of the donor, and the provisions of the donor’s will as to the persons taking in default of appointment are to be found accurately stated in 31 Pa. Superior Ct. 631 and 632. Mrs. Rogers’s will authorized the donee, her husband, to appoint $4,000 to the family of her mother “and the balance to her father’s family in such manner as he may think proper.” The donee of the power attempted to exercise it by appointing $4,500, in varying sums, to several members of the family of his wife’s mother, and appointed the balance of the residue, in varying sums, to members of the family of his wife’s father. The appointment to the family of the wife’s mother included a part of the estate of the donor not included within that branch of the power; the part thus appointed in excess of the power was not separable, and the whole appointment to the family of the wife’s mother was, therefore, bad. This court in disposing of the question said: “The intention of the donor, with regard to the power of appointment which she entrusted to her husband, is to be gathered from her whole will. We do not say that had the donee appointed to members of the family of the wife’s mother a sum less than $4,000, that such appointment would not in itself be valid; it is not necessary to decide that question. We are of opinion, however, that as between the authority to appoint to the family of the wife’s mother and the family of her father, the power was not divisible. The authority of the donee to appoint to the members of the family of the wife’s father was confined to 'the balance,’ after appointing $4,000, as authorized by the donor, to the family of the wife’s mother. The will of the donor clearly indicates that it was not her intention that the donee should appoint to the members of her father’s family until the donee had made such an appointment as her will authorized to the members of the family of her mother. Had the donee expressly declined to appoint the $4,000 to the family of the mother of the donor, he would not have had authority to appoint the amount in excess of $4,000 to the family of the donor’s father, for such an appointment would have come directly in conflict with the alternative bequest over, by the donor, which provided that in case the donee failed to make the disposition which she authorized. certain designated members of her mother’s family should receive in the aggregate $4,500.” The decision in that case turned upon the language of the will of the donor. The intention of the donor, as gathered from the four corners of her will, was held to be that the donee should not appoint to members of the family of the father of the donor until he had first validly appointed $4,000 to members of the family of her mother. The donee had not made a valid appointment to members of the family of the mother of the donor, and to permit the part of the appointment made to members of the family of her father to stand would defeat the express provisions of her will. That case decided that a partial exercise of a power of appointment which would defeat the intention of a testatrix expressed in her will was invalid. The decision is in harmony with all the authorities upon the subject.

The will of Henry G. Freeman placed no restriction upon the number of shares into which the donees of the power might divide the income which was the subject of the power, nor upon the relative value which the shares should bear to each other, nor did it require that the income should be divided. The donees might select any one person within the class and appoint to that person exclusively. The alternative bequest over, upon failure to appoint, was to all the children equally. An appointment under this power of one-half of the income to one child, leaving the other half to be distributed under the alternative bequest over by the donor would not have been in contravention of the will, which' authorized the respective donees to appoint the whole income in' the very manner in which this partial appointment would cause it to be distributed. The appointment of a part of the income, leaving the other part to be disposed of in default of appointment, would be the same as if the donee had made the same disposition of the part not appointed as took place for default of appointment: Russell v. Kennedy, 66 Pa. 248. James B. Freeman appointed twenty-two-thirtieths of this income in the manner expressly authorized by the power. Had he failed to make any disposition of the other eight-thirtieths, the terms of the will of Henry G. Freeman would have been fully answered by equally dividing those eight-thirtieths among the surviving children of James B. Freeman, under the alternative bequest over. When the power of the donee over the subject of the power is absolute and the appointment is to persons some of whom are objects of the power and others are not properly within the class, in such case the objects of the power take the shares given to them and the shares given to persons who are not objects go in default of appointment, unless such disposition would contravene the express provisions of the will of the donor: Gray on Perpetuities, sec. 538; Sugden on Powers (8th ed.), 507 and 526. The appointment to Mary Anne Williamson being invalid, that part of the estate is to be treated as if no appointment had been made, and the appointments made to the children who are properly objects of the power were by the court below properly sustained: Boyd's Estate, 199 Pa. 487.

The decree is affirmed and the appeal dismissed at cost of the appellant.


source: Caselaw Access Project

author: Porter, J.,

license: Public Domain

text:
    Winchester, Appellant, v. Rich.

      Justice of the peace — Judgment—Appeal—Quashing appeal — Affirmance of judgment — Bond—Principal and surety.

    1. Where an appeal from a judgment of a justice of the peace is quashed for any reason other than a defect in the recognizance, the quashing of the appeal is an affirmance of the judgment within the moaning of a recognizance “ conditioned for the payment of the debt, interest and costs on affirmance of the judgment in the court of common pleas.”
    2. The action of the court of common pleas in quashing an appeal from a judgment of a justice of the peace, is a judgment of a court having jurisdiction of the parties and the subject-matter, and cannot be reviewed in a collateral proceeding, such as an action by the plaintiff in the judgment against the surety in the recognizance of the defendant.
    Argued Feb. 23, 1909.
    Appeal, No. 19, Feb. T., 1909, by plaintiff, from judgment of C. P. Clinton Co., Jan. T., 1907, No. 57, on verdict for defendant in case of Amasa B. Win-Chester v. M. B. Rich.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Appeal from judgment of a justice of the peace. Before Hall, P. J.
    The opinion of the Superior Court states the facts.
    Under the instruction of the court the jury returned a verdict for the defendant. Plaintiff appealed.

      Error assigned among others was in giving binding instructions for defendant.

      C. S. McCormick, for appellant, cited:
    Mair’s Est., 34 Legal Int. 20; Beale v. Dougherty, 3 Binney, 432; O’Donnell v. Mullin, 27 Pa. 199; Cope’s App., 39 Pa. 284.

      Geo. A. Brown, with him T. M. Stevenson, for appellee, cited:
    Davis v. Mercantile Trust Co., 30 Pitts. Leg. Journal (N. S.), 371.
    July 14, 1909:
   Opinion by

Porter, J.,

The plaintiff recovered a judgment, before a justice of the peace, against Elizabeth Gates and others, partners, trading as the I. X. L. Brick Company, on August 4, 1905. An execution was issued on this judgment by the justice on August 9, 1905, and on the same day returned by the constable “no goods.” The plaintiff, on August 11, 1905, filed a transcript of this judgment in the common pleas and issued execution thereon to the sheriff. The record of the justice showed that the claim of the plaintiff was for wages of manual labor performed by the plaintiff for the defendant. The defendants in this original judgment appeared before the justice, on August 14, 1905, filed the affidavit required by law and appealed from the judgment, and N. B. Rich, the present defendant, entered into recognizance, as surety, in the sum of 1150, “conditioned for the payment of the debt, interest and costs on affirmance of the judgment in the court of common pleas.” The transcript upon the appeal was by the original defendants filed in the court of common pleas on September 20, 1905, and on the twenty-fifth of the same month the sheriff returned the execution then in his hands, which had been issued on the transcript filed by the plaintiff, “appeal taken and writ returned.” The court of common pleas, on November 10, 1905, granted a rule, upon petition of the plaintiff, to show cause why the appeal should not be quashed, and on August 21, 1906, the court made the rule absolute and quashed the appeal. The plaintiff subsequently caused a scire facias to issue, by the justice of the peace, upon the recognizance entered into by N. B. Rich, this defendant, upon the appeal in the original judgment. The plaintiff recovered a judgment against Rich before the justice and Rich appealed to the court of common pleas. Upon the trial in the court below the learned judge gave binding instructions in favor of the defendant, upon the ground that as the court had quashed the appeal, the defendant must be held not to have taken an appeal, and the plaintiff was estopped from asserting that he had done so. The plaintiff now appeals.

The action of the court of common pleas, in quashing the appeal, was the judgment of a court which had jurisdiction of the parties and the subject-matter and cannot be reviewed in this collateral proceeding. The defendants in the .original judgment might have taken an appeal and caused the action of the court to be reviewed, Beale v. Dougherty, 3 Binney, 432, but they permitted the action of the court to stand unquestioned and the judgment of the court made an end of the appeal. That, however, did not determine that there never had been an appeal, nor that this surety was not liable on his recognizance. It was the business of the justice, in the first instance, to determine whether the appeal was regularly taken or not. When the justice allowed the appeal, the rights which it gave to the defendant in the original judgment could not be lawfully withheld from him by the plaintiff, or the sheriff who had the writ of execution in his hands, on the pretense that the justice had committed an error: O’Donnell v. Mullen, 27 Pa. 199. The taking of the appeal, before the transcript thereof was filed in the common pleas, had the effect of superseding the right of the plaintiff to have execution upon his judgment: Plowman v. Abrams, 1 Dallas, 316; Cope’s Appeal, 39 Pa. 284. The appeal which the original defendants took, the .justice allowed and in the taking of which the present defendant became bound by recognizance was an appeal in effect and in fact; and it operated to deprive the plaintiff of the right of execution upon his judgment for an entire year. Had the original appeal been quashed upon the ground that Rich had not in fact become bound by recognizance, or upon the ground that the recognizance had been taken in a form not authorized by law, an entirely different question would have been presented, the court would be in such a case passing upon the very question of the validity of the recognizance and if it held the same to be invalid the surety would be relieved. The appeal was not quashed because of any defect in the recognizance, but because the original defendants had failed to perform a collateral act, which the court held they were required to do. We are of opinion that the learned judge, in the hurry of the trial, fell into error in holding that there had been no appeal from the original judgment. The defendants had appealed, the justice had allowed the appeal, this appellee had become duly bound by recognizance, and the appeal had given to the original defendants the advantage of a long delay.

When an appeal is taken from a judgment of a justice, the ordinary course results in the entry of a judgment after a jury trial, but it was not necessary that there should be a jury trial in order to constitute an affirmance of the judgment of the justice, within the meaning of the recognizance of the appellee. The failure of the party appealing from the judgment of the justice to file the transcript in the common pleas within the time allowed by law, would in such a case constitute an affirmance of the judgment: Morgan v. Soisson, 21 Pa. Superior Ct. 141. That judicial act of the appellate court by which the controversy between the parties comes to an end, and the plaintiff is placed in position to collect his judgment, is an affirmance of the judgment of the justice. When the appeal is dismissed, or quashed or stricken off because it is not filed in time the judgment is a final one and prevents all further proceedings in the suit, constituting an affirmance of the judgment: Beale v. Dougherty, 3 Binny, 432; Mair’s Estate, 34 Legal Int. 20; Reed v. Palmer, 44 Pitts. Leg. Jour. 310; Clapp v. Senneff, 7 Phila. 214. The order of the court quashing the appeal ended the controversy between the parties, but it did not make the judgment of the justice, for the debt, a judgment of the court of common pleas. The effect was to remove the bar which the appeal constituted to proceedings by the plaintiff to collect the judgment of the justice; this he might do by issuing execution against the original defendants or by issuing a scire facias upon' the recognizance entered into by the appellee. The recognizance is not in the precise words indicated by either the Act of April 9,1872, P. L. 47, or the Act of April 20, 1876, P. L. 43, but it is in substantial accord with both of those statutes. In such matters the law looks to the substance rather than form: Seidenstriker v. Buffum, 14 Pa. 158; Murray v. Haslett, 19 Pa. 356; Ingham v. Tracy, 5 Watts, 333. The only question involved in the right of the plaintiff to recover, was the identity of this defendant and that of the party who became surety in the recognizance upon which the action was founded.

The judgment is reversed and a venire facias de novo awarded.


text:
    Mahanoy City Borough v. Hersker, Appellant.

      Boroughs' — License—Theater—Police power — Acts of April 3, 1851, P. L. 320, and May 5, 1876, P. L. 112.
    1. Under the Acts of April 3, 1851, P. L. 320, and May 5, 1876, P. L. 112, giving boroughs the power to regulate, license or prohibit theatrical exhibitions, a borough has the power to impose a license fee of $3.00 per day upon theatrical exhibitions.
    2. The amount which a borough may ordain shall be paid for a license to give a theatrical performance is not limited to the sum which will reimburse it for the pay of the police officers which it especially delegates to watch the actors during the performance.
    Argued Dec. 11, 1908.
    Appeal, No. 207, Oct. T.,-1908, by defendant, from judgment of C. P. Schuylkill Co., July T., 1908, No. 78, on verdict for plaintiff in case of Mahanoy City Borough v. Christiana Hersker.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Appeal from judgment of justice of the peace.
    At the trial Shay, J., charged as follows:
    [There are at present a number of questions that come up before the courts in relation to the powers of boroughs. There are some powers of the boroughs that are granted by statute, and others that a borough council has by reason of the implied power that inures to a borough by reason of its being a municipality. Now, when they pass an ordinance under implied powers, the question of the reasonableness as to the fee charged becomes a question for either the court or jury, as the facts are admitted or disputed; but where a power is given by act of assembly to a borough to pass an ordinance, as is the case here, by the act of 1851, boroughs were empowered to license or prohibit theatrical performances and shows, mountebanks, jugglery, circuses and different exhibitions of that kind.
    We have tried in this court one of these cases already, and this court so held, that they had a right to pass an ordinance under that act of assembly, and they have a right to prohibit the performance of shows in the town, if they so see fit, under this act of assembly; and I have in mind decisions of the courts in the state of Pennsylvania that hold they can make the license fee prohibitive. Therefore, the evidence that was offered by the defendant as to the reasonableness or unreasonableness of this fee, we, as the court, think is not relevant testimony.] [8]
    You have in evidence that on April 4, 1905, the borough of Mahanoy City passed an ordinance directing a fee of $3.00 to be paid for theatrical performances, which is the fee in question here, I believe. Is it not so?
    Mr. Lyon: Yes, sir.
    ' The Court: And other fees; but the fee this party would have to pay was $3.00. On March 3 of the present year there was a theatrical performance in the opera house of the defendant, and she did not take out a license under the provisions of this ordinance. There was a license fee of $100 that was talked of here by the defendant, but that was not under this ordinance. The ordinance under which that purported to be paid, or under which it would have been purported to be paid, was not approved by the chief burgess, and therefore was not an ordinance of the borough of Mahanoy City; and the only one, then, that was a legal ordinance, was this ordinance of 1905, which provided for a daily tax of $3.00 on the theater. That was not paid, as the uncontradicted evidence in this case shows, and therefore the borough is entitled to recover the penalty for which they sue. I believe that was $5.00.
    [We therefore direct the jury to render a verdict in favor of the plaintiff and against the defendant, for the sum of $5.00.] [9]
    Verdict and judgment for plaintiff for $5.00. Defendant appealed.

      Errors assigned were (8, 9) above instructions, quoting them.

      R. P. Swank and C. E. Berger, for appellant.
    The borough had no power to impose a license fee of $3.00 per day: Benson v. Mayor of Hoboken, 33 N. J. Law, 280; North Hudson County Ry. v. Hoboken, 41 N. J. Rep. 71; Muhlenbrinck v. Commissioners, 42 N. J. Law Rep. 365; Stedman’s App., 14 Phila. 376; Oellers v. Ritter, 5 Pa. Dist. Rep. 149; Flanigan v. Sierra County, 196 U. S. 553; Pottsville Borough v. Gas Co., 33 Pa. Superior Ct. 480; Com. v. Jackson, 34 Pa. Superior Ct. 178; Titusville v. Gahan, 34 Pa. Superior Ct. 613; Kittanning Borough v. Gas Co., 35 Pa. Superior Ct. 167; Kittanning Borough v. Water Co., 35 Pa. Superior Ct. 174; Postal Telegraph-Cable Co. v. Taylor, 192 U. S. 64; Atlantic & Pacific Tel. Co. v. Philadelphia, 190 U. S. 160; Postal Telegraph Co. v. New Hope, 192 U. S. 55.

      T. H. B. Lyon, for appellee.
    The appellant contends that the ordinance in question is a revenue measure. This the appellee denies and claims that it is a valid exercise of the police power of the state: North Wales v. Brownback, 10 Pa. Superior Ct. 227; Wilkes-Barre v. Garabed, 11 Pa. Superior Ct. 355; Sayre Borough v. Phillips, 148 Pa. 482; Oil City v. Trust Co., 151 Pa. 454; Oellers v. Horn, 3 Pa. Superior Ct. 537; Theater Co. v. Weaver, 33 Pa. C. C. Rep. 241; Beer Co. v. Mass., 97 U. S. 25; Davis v. Mass., 167 U. S. 43; Cantini v. Tillman, 54 Fed. Repr. 969; Com. v. Gardner, 133 Pa. 284; Com. v. Harmel, 166 Pa. 89.
    July 14, 1909:
   Opinion by

Porter, J.,

This case involves the validity of an ordinance of the borough of Mahanoy City, ordaining “That no theatrical exhibition, concert, show, circus, jugglery, or other exhibition shall be held, exhibited or given, without a license first had and obtained from the chief burgess.” The second section of the ordinance authorizes the chief burgess to issue licenses for such theatrical and other exhibitions, upon the payment to him of a license fee, which in case of theatrical exhibitions is fixed at $3.00 per day. It was admitted at the trial in the court below that the defendant had given various theatrical exhibitions, but she based her defense upon the ground that the ordinance was invalid. The borough recovered a judgment and the defendant appeals.

The defendant offered evidence as to the number of theatrical performances given in her theater in each year, and the number of such performances given in the entire borough in each year, and, in connection with this offer of evidence, offered to prove that the borough expended no money in the exercise of its police power, in or about the conduct of such exhibitions or the supervision thereof, and that the amount of the license fee, under the ordinance, is out of all proportion to the amount expended by the borough in the exercise of any lawful police power in relation to the said business. The offer of this evidence was made in various forms, and the rejection thereof is the foundation of the several specifications of error. The contention of the appellant is that the power of a borough to impose a license fee is limited to the amount which will reimburse it for the cost of reasonable police supervision of the various theatrical performances, and in support of this contention she cites the decisions in those cases in which the power of a borough to impose a charge upon telegraph and telephone poles in the streets has been considered and defined.

The contention of the appellant is not well founded. There is no authority conferred by statute upon boroughs to regulate the poles of telegraph companies, or to require that they be removed from the borough. The authority to impose a charge upon the company for such poles has not been made the subject of express grant, but has been held to be fairly incidental to the general grant of power to regulate the streets and to be limited to the amount necessary to reimburse the borough for the cost of the police supervision reasonably requisite for the protection of the public. An illustration of the distinction between a power expressly granted and a power merely incidental to the general authority of the corporation may be found in Sharon Borough v. Hawthorne, 123 Pa. 106, and Borough of Millerstown v. Bell, 123 Pa. 151. License fees may be imposed (1) for regulation, (2) for revenue, (3) to give monopolies, (4) for prohibition. “The fourth purpose is entirely admissible in the case of pursuits or indulgences which in their general effect are believed to be more harmful than beneficial to society, and which consequently the public interest requires should be put an end to Cooley on Taxation, 403. The same author on pages 410 and 411 says, “When the license is for regulation merely, the limitation is one of discretion and policy, and the question presented is whether the business or occupation is one rendering special regulation important for any purpose of protection to the public, or to guard individuals against frauds and impositions, .... public amusements may also be forbidden with entire propriety except when licensed, inasmuch as everything of that nature has some tendency to disorder and to increased necessity for police supervision.” Respecting amusements, exhibitions, etc., the authority of the corporation under the power to license has been regarded as greater than when the same word is employed as to trades and occupations: 1 Dillon on Municipal Corporations, sec. 357.

The general borough law of April 3, 1851, P. L. 320, sec. 2, granted to boroughs the power “to regulate and prohibit the exhibition of plays, shows, montebanks, juggleries and all other exhibitions within the same.” The Act of May 5, 1876, P. L. 112, expressly conferred upon boroughs “the right and authority to regulate, license or prohibit theatrical exhibitions, concerts, circuses, shows, montebanks and juggleries, and all other exhibitions within the limits of said boroughs,” and to pass such ordinances or by-laws as may be necessary for that purpose. The borough of Mahanoy City was thus expressly clothed with power to regulate, license or prohibit theatrical exhibitions, and in the exercise of that power passed the ordinances in question, The exercise of police power directly by the legislature and by municipalities under legislative authority stands on the same ground and is subject to the same conditions: North Wales v. Brownback, 10 Pa. Superior Ct. 227; s. c., 194 Pa. 609; 1 Dillon on Municipal Corporations, sec. 308. The borough had authority to regulate, restrain and prohibit the business with which this ordinance dealt. “ It is settled law that where the legislature in terms confers upon a municipal corporation the power to pass ordinances of a specific and defined character, an ordinance passed pursuant thereto cannot be impeached as invalid because it would have been regarded as unreasonable if passed under the incidental power of the corporation, or under a grant of power general in its nature. In other words, what the legislature distinctly says may be done, cannot be set aside by the courts because they deem it to be unreasonable or against sound policy:” Ligonier Valley Railroad Co. v. Latrobe Borough, 216 Pa. 221.

The power of a borough to enact ordinances relating to theatrical entertainments bears a much closer relation to that which it possesses over hawking and peddling, than to that which it may exercise over the poles of a telegraph company. The act of April 3,1851, conferred upon boroughs authority to "make all needful regulations respecting, .... the hawking and peddling of market produce and other articles in the borough.” Under this provision it was held that an ordinance which fixed the price of a license for hawking and peddling so high as to make, as it was evidently intended to make, the ordinance amount to prohibition, might be sustained as a police regulation, intended to destroy a business that was regarded as injurious, if it bore upon all persons impartially: Sayre Borough v. Phillips, 148 Pa. 482. The grant to the various boroughs of the commonwealth of power to enact ordinances relating to theatrical performances is in terms broad as it can be made. They have not only the power to regulate but to license or prohibit. The exercise of this power involves matters not involved in the mere police inspection of the plays during the period they are in progress. The license fee may be fixed high for the purpose of restraining irresponsible persons and vagrant players from attempting performances: Mechanicsburg Borough v. Koons, 18 Pa. Superior Ct. 131. It may be fixed at a rate which will tend to insure respectability in the performances. The borough authorities in fixing the amount of fee to be paid for the license might properly. consider the number of theatrical performances and circuses which it was desirable to have within the borough and, in the interest of public order, whether that number should be limited, and they might properly fix a fe¿ which would place some check upon the number of such entertainments: Johnson v. Philadelphia, 60 Pa. 445. The ordinance which was considered by the Supreme Court in Warren Borough v. Geer, 117 Pa. 207, fixed the same rate per day for a person peddling shirts that the present ordinance does for theatrical performances, yet that ordinance was held to be valid exercise of the police power. The propriety of fixing a high license fee for the purpose of restraining a business has been frequently recognized in statutes, a-notable instance being the Act of May 13, 1887, P. L. 108, entitled, “An act to restrain and regulate the sale of vinous and spiritous, malt or brewed liquors, or any admixtures thereof.” The license fees fixed by this act were high and were different for different classes of municipalities; it was argued that this involved a violation of art. IX of the constitution, requiring uniformity of taxation, but the statute was sustained as an exercise of.the police power: Com. v. Mc-Candless, 21 W. N. C. 162. The amount which a borough may ordain shall be paid for a license to give a theatrical performance is not limited to the sum which will reimburse it for the pay of the police officers which it especially delegates to watch the actors during the performance. The specifications of error are without merit.

The judgment is affirmed.


author: Henderson, J.,

text:
    Trainer v. McGarrity, Appellant.

      Wills — Probate—Undue influence — Death of party — Practice, O. P.— Evidence.

    1. On an appeal from a judgment on a verdict sustaining a will, the appellants have no standing to complain of the action of the court in submitting the case to the jury, because one of the contestants was dead at the time of the trial and his representatives had not been substituted of record.
    2. On the trial of an issue devisavit vel non where undue influence is alleged, it is not error to refuse to admit in evidence the will of the husband of the decedent, which gave to the latter a power which the contestants alleged was not properly exercised.
    3. In such a case evidence that the decedent had executed a deed of land to the beneficiary, and that the latter was present when -the decedent drew a certain sum of money from bank, is not sufficient to establish undue influence, where there is nothing to indicate that the conveyance was not a free and voluntary act of the decedent, and there is nothing to show what she did with the money which she had withdrawn from the bank; nor in such a case is it permissible to show that a priest who was alleged to have unduly influenced decedent, had been withdrawn from a church on charges that he had induced people to make and alter wills.

      Practice, C. P. — Trial—Mistake—Correction of mistake.

    4. Where counsel object to certain words used by the trial judge in his charge, and the latter immediately renews the instructions omitting the words objected to, and stating the law correctly, the use of such words, even though erroneous, is not a ground for reversing the judgment.
    Argued Dee. 18, 1908.
    Appeal, No. 163, Jan. T., 1908, by Maternity Hospital et al., from judgment of C. P. No. 4, Phila. Co., Sept. T., 1903, No. 2,536, on verdict for plaintiffs in case of Edward Trainer and P. J. Flaherty, Executors, v. Catharine McGarrity et al.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Issue devisavit vel non. Before Willson, P. J.
    At the trial the court refused to admit the will of John Loughran, decedent’s husband.

      ■When Catharine McGarrity was on the stand she was asked this question:
    “Q. Did Mrs. Loughran, six months after you came to live with her at Fifteenth and Catharine streets, and eight months before her death, give you the property where you and she were living?”
    The trial judge saying: By itself it amounts to nothing. I will sustain the objection at present. Whether it will be relevant later on is another question.
    To which ruling the court granted contestants an exception. [3]
    Contestants made this offer:
    I offer in evidence the pass book of the Beneficial Savings Fund in order to establish that within twenty days after the book was received from Charles P. Bradley, according to his testimony, Mrs. Loughran, with Catharine Grogan, went to the savings fund and drew out, I think, $1,200, and a short time subsequently $5,000. That prior to the time when the book was taken over no drafts were made at all for a period of years, and that deposits were made to the number of six each year, to which ruling the contestants were granted an exception. [4]
    P. J. Flaherty was asked this question:
    “ Q. Is it not true that your ecclesiastical faculties have been withdrawn as the result of the sentence of an ecclesiastical court after a regular hearing on charges preferred against you?”
    Objected to. Objection sustained. Exception noted for respondents by direction of the court. [7]
    “Q. Is it not true that you have been subject to frequent and repeated censures for misconduct in connection with thrusting yourself into the affairs of people and inducing them to make and alter wills?”
    Objected to. Objection sustained. Exception noted for respondents by direction of the court. [8]
    “Q. Are you not in default for large amounts as executor of two estates?”
    Objected to. Objection sustained. Exception noted for respondents by direction of the court. [9]

      10. The court charged the jury, inter alia, as follows:
    [Before you can say that any undue influence from her was the cause of that will being what it was, you must be able to say that an undue influence, a poisoning influence, a prejudicing influence exercised by Catharine Grogan during the previous mopths or years had so affected the mind of Bridget Loughran toward some of her relatives that at the moment she was influenced by it, insanely influenced by it to make a will which she otherwise would not have made. And in declining to withdraw the said instructions, on objection being specifically made thereto by contestants, and in referring again to the same subject, in response to said specific objection, as follows:
    Mr. Miller: I desire an exception to that part of your honor’s charge in which you said that the condition of being influenced by Catharine Grogan and Father Flaherty must be that of being insanely influenced.
    The Court: That is the very point you put to me.
    'Mr. Miller: I know I did, but there are two grounds.
    The Court: I do not remember just what language I used in what I said to you in regard to the point which counsel now speaks of, but I say now that if you shall believe that Catharine Grogan’s influence over the mind of Mrs. Loughran, in the confidential relation she occupied towards her, had been brought to bear upon the mind of Mrs. Loughran in such a way as to create prejudices, delusions or suspicions with regard to relatives who were omitted from the will, and that these prejudices, delusions or suspicions were the cause of those persons being omitted from the will, then that was undue influence which would invalidate the will. You are to reach the truth in regard to that question according to such lines of inquiry as I have already indicated, and after a full comparison and exchange of opinion on your part.
    Mr. Miller requested exception “on the ground that your honor does not yet, as I understand, give the jury to understand that with regard to the matter of undue influence either general or delusional insanity is not essential.”] [10]
    Verdict and judgment for the will. Defendants appealed.

      Errors assigned among others were (1) in submitting the case to the jury after one of the contestants had died; (2, 3, 4, 7, 8, 9) rulings on evidence, quoting the bill of exceptions, and (10) portion of charge as above, quoting it.

      E. Spencer Miller, with him Anthony A. Hirst, for appellants.

      Henry A. Hoefler, with him Michael Francis Boyle, for appellees.
    July 14, 1909:
   Opinion by

Henderson, J.,

Two questions were at issue in the trial of this case: (1) Was the testator of sound mind; (2) was the testator a subject of undue influence at the time of the execution of the will. The first was not pressed at the trial and it is not now contended that the evidence was sufficient to support a verdict on that ground. The real controversy was on the allegation of undue influence. Complaint is now made that the case should not have been submitted to the jury because one of the contestants named in the precept of the register had died in the meantime. No objection was made during the progress of the trial on that account, however; the interest of this deceased party is not represented in the appeal and the subject is not before us on the record. The appellants were not prejudiced in any way by the fact and have not shown us how they can legally bring that matter to our attention in this proceeding. The heirs of the deceased party are not complaining, and the only persons liable to be disadvantaged are the appellees.

In any aspect of the case as developed at the trial the will of John Loughran was not competent evidence. He was the husband of the testator and died a long time before his wife and .nothing in his will tended to show that undue influence was brought to bear on his widow when she made her will. Its admission would have diverted the attention of the jury from the question they were charged to consider and would have led them into an examination of the condition of the estate of John Loughran and an inquiry whether Mrs. Loughran had executed the power committed to her by her husband’s will. These matters were in no way connected with the execution of Mrs. Loughran’s will and could not have aided the jury in determining the question before it. If we assume that Mrs. Loughran disregarded the directions contained in the power in the will, that does not at all support the allegation that some controlling influence directed her and this is practically admitted by the learned counsel for the appellant who, while conceding that the evidence was not necessarily indicative of that which he sought to establish, yet thought that it was proper for the consideration of the jury in weighing the whole evidence. Unless, however, it tended to support the issue it was not admissible. But it is said that the most serious practical result of this ruling was that several parties to the issue were thereby disqualified. We do not find anything in the record, however, which shows such a consequence. The jury was sworn as to all the parties named in the register’s precept; no action was taken excluding any one of them; the appellees made no objection to the presence of any of the defendants on the record, nor do we find that the rejection of the will resulted in the exclusion of any testimony offered by the contestants. There is no ground, therefore, for the conclusion that the jury supposed that any of the contestants had lost their standing. The only thing to be considered in the case tried was whether the document presented for probate was the lawful will of the testator. It did not involve the question as to the proper exercise of the power conferred by the will of John Loughran.

The allegation of the contestants was that Catherine Grogan, a cousin, and Rev. P. J. Flaherty, a spiritual adviser of the testator, had exerted the influence of which the appellees complain. In support of this charge it was proposed to show that the testator conveyed to Catherine Grogan a house and lot in the city of Philadelphia. When this was done with reference to the date of the will does not appear, nor is there any fact or circumstance connected with the transaction offered or suggested which tended to impeach the fairness of the conveyance or to show that it was not a free and voluntary act on the part of the grantor. The court would not have been justified in saying that that was evidence of undue influence, nor would the jury have been warranted in reaching such a conclusion. Along the same line it was proposed to prove that Mrs. Loughran had withdrawn, at one time, $1,200, and at another time, $5,000, from a savings bank in which she made deposits, and that Catherine Grogan was with her. There was not any offer to show that this was done at the instigation of Miss Grogan or that she received any of the money, and the counsel for the appellants frankly admitted that they were not able to prove what Mrs. Loughran did with the money so taken from the bank. To submit a case on such evidence as this would invite the jury into the realm of the widest imagination and let speculation take the place of proof. The evidence must have a logical tendency to exclude the presumption of the absence of undue influence.

It is not easy to see what pertinent argument the learned counsel proposed to make from the evidence offered to show that the “ecclesiastical faculties” of Rev. P. J. Flaherty had been withdrawn by the church to which he belonged on charges preferred against him, and that he had been “subject to frequent and repeated censures for misconduct in connection with thrusting yourself into the affairs of people and inducing them to make and alter wills,” and that he was in default for a large amount as an executor of two estates. Keeping in mind that the charge was that he exerted undue influence over the testator it is obvious that this course of examination did not tend to support the issue but would have led into an inquiry on subjects not even remotely connected with the case before the court.

The tenth assignment presents a portion of the charge of the court. The part particularly objected to is that in which the court said to the jury that before they could say that any undue influence was exercised by Catherine Grogan they must be able to say that at the time of making the will Mrs. Loughran was “insanely influenced” by her to make a will which she otherwise would not have made. This was probably suggested by the fourth, fifth and sixth points presented by the counsel for the appellant in which the court was requested to charge as to the effect of insane delusions existing in the mind of the testator under the influence of which she made her will. It was an instruction quite apposite in connection with the last of the points above referred to. Whether the words are susceptible of the construction put on them by the appellants it is not necessary to consider, for the attention of the court was immediately called to the language used and the court at once renewed the instructions omitting the words objected to and stating the law correctly and in substantial accordance with the position taken by the appellants’ counsel at the trial. Taking the charge as a whole the case was carefully and clearly presented to the jury and the law applicable to the case correctly stated.

We are not persuaded that any of the assignments should be sustained.

The judgment is affirmed.


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    Conner v. Pittsburg Railways Company, Appellant.

      Negligence — Street railways — Car and wagon — Head on collision — Contributory negligence.

    Where a driver of a wagon goes, onto a street railway track because of obstruction on both sides, and a car in front of him and coming in his direction, stops at a crossing fifty feet from him, and the motorman notwithstanding signals starts his car abruptly and with full force, and runs the wagon down before it can leave the track, the railway company is liable for the resulting injuries to the driver.
    Argued April 14, 1909.
    Appeal, No. 10, April T., 1909, by defendant, from judgment of C. P. No. 4, Allegheny Co., Third Term, 1907, No. 794, on verdict for plaintiff in case of William M. Conner v. Pittsburg Railways Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Carnahan, J.
    The facts appear by the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $1,400. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      James C. Gray, with him Clarence Burleigh and William A. Challener, for appellant.
    Plaintiff was guilty of contributory negligence in not looking for a car before he turned his horse towards the track on which the car was coming: Carson v. Ry. Co., 147 Pa. 219; Ehrisman v. Ry. Co., 150 Pa. 180; Darwood v. Traction Co., 189 Pa. 592; Kern v. Traction Co., 194 Pa. 75; Pieper v. Traction Co., 202 Pa. 100; March v. Traction Co., 209 Pa. 46; Moser v. Traction Co., 205 Pa. 481; Timler v. Transit Co., 214 Pa. 475; Brown v. Traction Co., 14 Pa. Superior Ct. 594; McPhillips v. Traction Co., 19 Pa. Superior Ct. 223; Potter v. Ry. Co., 19 Pa. Superior Ct. 444; Houston Bros. Co. v. Traction Co., 28 Pa. Superior Ct. 374.

      C. W. Jones, with him H. S. McKinley, for appellee, cited:
    Baughman v. R. R. Co., 92 Pa. 335; Ry. Co. v. Boudrou, 92 Pa. 475; Sharrer v. Paxson, 171 Pa. 26; Gilmore v. Ry. Co., 153 Pa. 31; Smith v. Traction Co., 3 Pa. Superior Ct. 129; Cleary v. Traction Co., 179 Pa. 526; Eastman v. Ry. Co., 37 Pa. Superior Ct. 287; Waechter v. Traction Co., 198 Pa. 129.
    July 14, 1909:
   Opinion by

Henderson, J.,

It requires a clear case to justify the court in denying a recovery to the plaintiff on account of contributory negligence. This is not such a case. No evidence was introduced for the defendant and the argument in behalf of the appellant is based on the testimony introduced by the plaintiff. The accident occurred on Robinson street on which a single track of the defendant company is located. The plaintiff was driving westwardly; the car with which he was in collision was going eastwardly. An ice wagon standing in front of a saloon on the north side of the street obstructed the plaintiff’s progress along that side. He, therefore, turned to the left onto the track just as the defendant’s car turned the curve from School street onto Robinson street. The plaintiff was in a two wheel driving sulky to which one horse was attached. According to his testimony and that of another witness the car stopped at the crossing when it came onto Robinson street. The plaintiff’s horse was then headed toward the car. Finding it dangerous to attempt to pass between the car and the ice wagon the plaintiff turned his horse toward the curb on the side along which he had been driving and attempted to get off the track there. While so doing the car was started suddenly by the motorman, notwithstanding the fact that the plaintiff signaled and called to him to wait and give him time to get off the track. At the time this signal was given the car was forty or fifty feet away from the plaintiff. An obstruction on the south side of the road prevented the plaintiff from driving across the track, and his only means of escape seems to have been to get back onto the street in the rear of the ice wagon. The car was coming with sufficient speed to carry the plaintiff and the vehicle about sixty feet. The testimony of the plaintiff is explicit that the car stopped at the regular stopping place after turning the curve onto Robinson street and that, in the words of the plaintiff, “The motorman very abruptly turned his car on full force and mashed me down.” At that time the horse was off the track and the front left corner of the car struck the left side of the cart. If the case were one in which the plaintiff had driven onto the track immediately in front of an approaching car the authorities cited by the learned counsel for the appellant would be decisive, but the evidence admits of an entirely different conclusion. The place at which the car came out of School street onto Robinson street on the sharp curve was only the width of five city lots from the place where the ice wagon stood, and the plaintiff’s field of vision was necessarily short for that reason. What the legal situation might be in the absence of evidence that the car stopped at the crossing we need not now consider, but taking that feature of the case into consideration we think it clear that a jury alone could determine the duty of the respective parties under the circumstances: Cleary v. Traction Co., 179 Pa. 526. The plaintiff had a right to be on the street and to drive on the track to avoid the ice wagon. If the car came onto Robinson street in the manner described by him and stopped at the' crossing when he was in plain view of the motorman and the car was then started without giving him an opportunity to get out of the dangerous situation in which he found himself a case for negligence could be sustained. We think the action of the court in refusing to give binding instructions and in overruling the motion for judgment non obstante veredicto was warranted by the evidence.

The judgment is affirmed.


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    O’Reilly v. Pennsylvania Railroad Company, Appellant.

      Negligence — Railroads—Pushing car in front of locomotive — Signals— Case for fury.

    1. It is not negligence per se for the employees of a railroad company to push a freight car in front of a locomotive on a track laid along a street in a city.
    2. In an action against a railroad company to recover damages for injuries to a horse, sustained in a collision at a grade crossing, the case is for the jury, where the evidence shows that the horse was struck by a freight car which was being pushed in front of a locomotive, that there was but one car being so moved, that its motion was about as fast as a man could walk, that the bell was ringing, and that men were on the front end of the car to give warning.
    Argued April 16, 1909.
    Appeal, No. 83, April T., 1909, by defendant, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1906, No. 1,141, on verdict for plaintiff in case of William C. O’Reilly v. The Pennsylvania Railroad Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Reversed.
    Trespass to recover damages for injuries to a horse. Before Frazer, P. J.
    At the trial it appeared that the action was brought to recover damages for injury to a horse sustained on April 4, 1905, in a collision with a freight car which was being pushed in front ' of an engine along railroad street in the city of Pittsburg at the crossing of Twenty-fifth street.

      The court charged in part as follows:
    [As a general rule it is negligence upon the part of a railroad company to push a car in front of an engine, especially upon tracks built upon the streets of a city or a town, or places where there is likely to be persons on the track. It would not be negligence in shifting in the yards of the company; but outside of that, in streets that are used by the public generally, it would be negligence upon the part of the railroad company operating a car in that way.
    Now it does not appear whether this was a usual place for shifting cars or not, or whether it was the main tracks of the Allegheny Valley Railroad. If it was a regular place for shifting cars, I leave it to you to say whether it would be negligence under those circumstances to put a car in front of an engine and push it along the street for the purpose of shifting. If it was negligence under the circumstances, then the plaintiff would be entitled to recover here, unless the driver was guilty of contributory negligence, unless he ought not, under the circumstances, to have driven on the track.] [1]
    Verdict and judgment for plaintiff for $408.02. Defendant appealed.

      Error assigned was portion of charge above quoted.

      James R. Miller, with him Patterson, Sterrett & Acheson, for appellant.
    In the case at bar the court should have left it to the jury to determine whether under all the circumstances the defendant was guilty of any negligence in the method of operating the car and the engine.
    We have been unable to find any case to sustain the portion of the charge assigned for error. Nor did counsel for the plaintiff refer to any at the argument on our motion for a new trial in the court below.

      C. C. Dickey, of Shiras & Dickey, for appellee.
    The authorities sustain the proposition that pushing a car in a populous city across a highway, as in this case, without precaution to protect travelers is negligence per se: Eaton v. Ry. Co., 51 N. Y. 544; French v. R. R. Co., 116 Mass. 537; Kentucky Cent. Ry. Co. v. Smith, 93 Ky. 449.
    July 14, 1909:
   Opinion by

Henderson, J.,

The plaintiff’s team came into collision with a car of the defendant on Twenty-fifth street in Pittsburg, where that street crosses Railroad street. The defendant uses three tracks on the latter street on one of which the freight car referred to was pushed by a locomotive, and it was the end of the car furthest from the locomotive which struck the team. The driver of the team testified that he did not hear any bell ringing, nor any warning of the approach of the car. The evidence for the defendant showed that the car was moving at the speed of four or five miles an hour; that a conductor and two other employees of the company were on the top of the freight car at the front end; that the engineer was ringing the bell of the locomotive and that the conductor on the top of the car hallooed to the plaintiff’s driver to stop before going onto the track. This being the state of the case the court charged the jury that, “As a general rule it is negligence upon the part of a railroad company to push a car in front of an engine, especially upon the tracks built upon the streets of a city or town, or places where there is likely to be persons on the track. It would not be negligence in shifting in the yards of the company; but outside of that, in streets that are used by the public generally, it would be negligence upon the part of the railroad company operating a car in that way. Now it does not appear whether this was a usual place for shifting cars or not, or whether it was the main tracks of the Allegheny Valley Railroad. If it was a regular place for shifting cars, I leave it to you to say whether it would be negligence under those circumstances to put a car in front of an engine and push it along the street for the purpose of shifting. If it was negligence under the circumstances, then the plaintiff would be entitled to recover here, unless the driver was guilty of contributory negligence, unless he ought not, under the circumstances, to have driven on the track.” This was in effect to instruct the jury as a matter of law that it is negligence per se for the employees of a railroad company to push a freight car in front of a locomotive on a track laid along a street in a city, and to withdraw from the jury the determination of the question whether the defendant was guilty of negligence under the circumstances. It left out of account the evidence that there was but one car in front of the locomotive, that it was moving about as fast as a man would walk, that the bell was ringing and that men were on the front end of the freight car to give warning. The jury might be led to conclude from this instruction that the defendant’s negligence was not the absence of proper signals, but the placing of the locomotive at the wrong end of the car. No case has been cited which makes it the absolute duty of a railroad company to attach a locomotive at the front of a car or number of cars under such circumstances. The ringing of a bell or the sounding of a whistle might not be a sufficient warning of an intended backward movement of a long train standing near a street crossing in a city, as was held in Eaton v. Erie Ry. Co., 51 N. Y. 544, and the throwing of a disconnected car across such a highway in making a running switch would be evidence of negligence, but the question of negligence is one of fact under the circumstances to be passed upon by a jury. A greater degree of care is due from a railroad company moving its cars along a public street in a city than is demanded in the open country. Whether due care was observed is a question of fact. Many cars are moved in some of the cities of the country by electricity or by power generated within the car, and it is within the range of probability that such methods of propulsion may be very generally introduced, thereby dispensing with locomotives. In the movement of such cars it would be necessary to adopt reasonable safeguards against accidents by collision, but a rule requiring that the propelling apparatus be placed in front of the car or train would work great inconvenience and might be impracticable.

We think the evidence does not admit of the inference that the car was being shifted in the yards of the company. The location is referred to as a street, and it is charged in the declaration that Railroad street is a public highway of the city. The evidence as we regard it raised an issue of fact which should have been submitted to the jury, which issue was this: was the defendant guilty of negligence in moving the car as it was moved under the circumstances?

The judgment is reversed and a venire facias de novo awarded.


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    Kennedy Township Road.

      Road law — Petition for road — Termini—Description.
    1. Absolute precision is not required in designating the termini in a petition for a public road. Reasonable definiteness, however, is necessary.
    2. A road petition described one of the termini as the point on another public road at or. near a particular schoolhouse, and a particular farm. The draft submitted with the report of viewers showed that the farm named extended for a long distance on one side of the public road, and that the schoolhouse was not on that road nor on the farm, but thirty rods or more in the opposite direction from the last course of the new road. Held that the description of the termini was not sufficiently definite to support the report of the jury of view.
    3. In such a case the petition is the basis of the pleading, and the validity of the proceeding depends on its sufficiency.
    Argued April 26, 1909.
    Appeal, No. 139, April T., 1909, by Robert F. Clever, from order of Q. S. Allegheny Co., Nov. T., 1907, No. 2, dismissing exceptions to report of jury of view In re Public Road in Kennedy Township.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Reversed.
    Exceptions to report, of jury of view.

      Error assigned was in dismissing exceptions to report of jury of view.

      Robert F. Clever, for appellant.
    It is not for the viewers to roam around to find termini for the road; their discretion is as to the route between the points fixed in the petition: Pocopson Road, 7 Pa. C. C. Rep. 617; Kyle’s Road, 4 Yeates, 514; Cornplanter Twp. Road, 26 Pa. Superior Ct. 20; Derry Twp. Road, 11 Pa. Superior Ct. 232; Allegheny Twp. Road, 14 Pa. Superior Ct. 244.

      W. G. Crawford, for appellee.
    July 14, 1909:
   Opinion by

Henderson, J.,

The petition requested the appointment of viewers to lay out a public road “to lead from a point on the Pine Hollow Road at or near the property of Robert Clever, Esq., in said township to a point on the Pittsburg & Middletown road, at or near Schoolhouse No. 3 and Hinheaur farm in said township.” The draft submitted with the report of viewers shows that the Hinheaur farm extends for a long distance on one side of the Pittsburg & Middletown road and that Schoolhouse No. 3 is not on that road, nor on the Hinheaur farm, but thirty rods or more in the opposite direction from the last course of the road. The schoolhouse is a misleading terminus, and there 'is no relation whatever between it and the Hinheaur farm or the Pittsburgh & Middletown road as a terminal of the western end of the road. Absolute precision is not required in designating termini. Reasonable definiteness, however, is necessary. The cases show that a designation of a point “at” or “at or near” an object, as for instance, a spring, a tree, a barn, a house, the dividing line between lands, the intersection of roads, or “upon” land of an owner named, is sufficient. This, for the reason that such a description points to the particular place at which it is proposed that the road terminate. But none of them to which our attention has been called has a terminus so vaguely and indefinitely set forth as that describing the western terminus of the road in question. There is the more reason for definiteness in cases like the present because the road is located mainly over land laid out in lots in a thickly settled neighborhood. The designation of this terminus in the petition would admit of a wide variance from the location adopted by the viewers, and with such indefiniteness of description it is not practicable to locate a road between defined termini as required by statute. The petition is the basis of the proceeding, and the validity of the proceeding depends on its sufficiency. We are of the opinion that the description of the western terminus is not sufficiently definite to support the proceeding and the second assignment is, therefore, sustained. In view of the foregoing conclusion it is unnecessary to consider the remaining assignments.

The order of confirmation is reversed and set aside and the proceeding quashed.


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    Indian Brewing Company’s License.

      Liquor law — Brewer’s license — Evidence—Record—Appeal.
    On an appeal from, an order of court refusing a brewing company’s application for a license, the evidence is not before the appellate court, and it cannot decide the case on its merits; but if it appears that the court of quarter sessions in the exercise of its discretion considered the number of petitioners for and remonstrances against the license, and the character of the remonstrants and petitioners, and other evidence, the appellate court will not reverse an order refusing the license.
    Argued May 5, 1909.
    Appeal, No. 181, April T., 1909, by the Indian Brewing Company, from order of Q. S. Indiana Co., Dec. T., 1908, No. 17, refusing a liquor license in case of-the Indian Brewing Company’s License.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Petition for a brewer’s license. Before Telford, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was order refusing the license.

      D. B. Taylor, with him Harry White, for appellant.
    Where the court sets forth on the record as part of its decree the reasons for its action, the appellate court has authority to look into the case for the purpose of ascertaining whether the reasons thus assigned are legal reasons: Doberneck’s App., 1 Pa. Superior Ct. 637; Donoghue’s License, 5 Pa. Superior Ct. 1; Gemas’s License, 169 Pa. 43; Prospect Brewing Co.’s Petition, 127 Pa. 523.
    The law gives to the judges of the court of quarter sessions the discretion of granting or refusing licenses. The discretion “is a judicial discretion, to be exercised for legal reasons and in a judicial manner. . . .” The applicant is entitled to a hearing, and a decision based on the evidence; though the court’s personal knowledge of certain facts such as the fitness of the applicant, etc., is a legitimate part of the case before it: Gemas’ License, 169 Pa. 43; Kelminski’s License, 164 Pa. 231; Black Diamond Distilling Co.’s License, 33 Pa. Superior Ct. 649; Doberneck’s App., 1 Pa. Superior Ct. 99; Gross’s License, 161 Pa. 344; Johnson’s App., 156 Pa. 322; Braunschweiger v. Waits, 179 Pa. 47; Bowman’s License, 167 Pa. 644; Sparrow’s Petition, 138 Pa. 116.

      John H. Pierce, with him H. E. Anderson, for appellees.
    In an application for license there must be a judicial hearing, and if the license is refused the refusal must be for a legal reason. Where these two points appear the appellate court will not discuss the correctness of the result reached by the court below: Gemas’s App., 169 Pa. 43; Doberneck’s App., 1 Pa. Superior Ct. 99; Brown et al., 2 Pa. Superior Ct. 63; Mead’s License, 161 Pa. 375.
    The statutes under which this application is made make no distinction between natural and artificial persons: Pittsburg Brewing Co.’s Wholesale License, 12 Pa. Superior Ct. 129; National Bank v. Graham, 8 W. N. C. 361; Erie City Iron Works v. Barber & Co., 106 Pa. 125.
    July 14, 1909:
   Opinion bt

Henderson, J.,

None of the features of this case distinguishes it in a material way from Black Diamond Distilling Co.’s License, 33 Pa. Superior Ct. 649; Reynoldsville Distilling Co.’s License, 34 Pa. Superior Ct. 269, and American Brewing Co.’s License, 161 Pa. 378. The application was for a brewer’s license under the Act of June 9, 1891, P. L. 257, which is entitled, “An act to restrain and regulate the sale of vinous and spiritous malt or brewed liquors or any admixtures thereof by wholesale.” The sixth section of the act requires the court to hear petitions from residents of the county in addition to that of the applicant in favor of and remonstrances against, the application for such license and in all cases to refuse the same whenever in the opinion of the court, having due regard to the number and character of the petitioners for and against such application, the applicant is not a fit person to whom such license should be granted. The case was regularly heard on the petition and remonstrance and oral evidence, and after such hearing the application was refused. The evidence is not before us for the appeal brings up nothing but the record: Berg’s Petition, 139 Pa. 354; Free’s License, 33 Pa. Superior Ct. 348; Beck’s Appeal, 164 Pa. 427. We are not at liberty, therefore, to consider the case on the merits. We can only decide whether it was disposed of according to law. While the court’s discretion is not as broad in an application for a wholesale license as for one at retail because the reasons which may influence the discretion of the court are fewer in the former than in the latter case, nevertheless, the same general principle applies that when a license has been refused after a hearing the presumption is that the refusal was for a legal reason unless the contrary affirmatively appear. There is nothing on the record to show that the appellant’s application was refused for an illegal reason. The evidence before the court presented objections recognized by the iaw as sufficient to sustain the refusal of a license, and we have not discovered anything in the case which justifies an inference or presumption that the court was not influenced by this evidence in taking the action complained of. If we were to consider the reasons given by the court as a part of the order refusing the license they do not furnish a basis for the appellant’s reasoning. It was entirely regular to count the number of petitioners for and remonstrances against the license, but the decision was not made on this numerical calculation. The character as well as the number was taken into consideration and this is what the statute authorizes. But the language of the court permits the presumption that other evidence besides the remonstrances may have been considered in determining the propriety of granting the application. No distinction is made in the act under which the application was made between natural and artificial persons: Pittsburg Brewing Co.’s License, 12 Pa. Superior Ct. 129. It was the duty of the court to exercise a judicial discretion and that appears to have been done in this case. The appeal cannot, therefore, be sustained.

The order of the court of quarter sessions is affirmed at the cost of the appellant.


text:
    Canonico, Appellant, v. Lucente.

      Landlord and tenant — Option for additional term — Notice.
    Where a lease provides for a letting for one year “with the right for a further term of four years,’’ and the lessee holds over, the holding over is sufficient notice to the lessor of an election to exercise the privilege. In such a case no other notice is necessary.
    Argued May 6, 1909.
    Appeal, No. 204, April T., 1909, by plaintiff, from judgment of C. P. Somerset Co., Dec. T., 1906, No. 249, on verdict for defendant in case of Augustino Canónico v. Joseph Lucente et al.
    Before Rice, P. J., Porter, Henderson, Morrison, Orladt, Head and Beaver, JJ.
    Affirmed.
    Ejectment for a lot of ground in Summit township. Before Kooser, P. J.
    At the trial title was conceded to have been in Wm. Boor who on November 16, 1905, leased the premises to A. Lucente, one of the appellees, “for the term of one year, from said date, .... with the right for a further term of four years from the 15th day of November, 1906.” The lease also contained the following clause: “It further being agreed and understood between the parties hereto, that the party of the second part shall not be permitted to sell or assign this Agreement without the written consent of first party.” On August 30, 1906, Wm. H. Boor and wife conveyed the premises to the appellant by deed which was duly recorded and on the same day the lease was assigned by Boor to the appellant. Canónico claiming that the lease had been forfeited by reason of an assignment or sale from A. Lucente to Joseph Lucente, on September 4,1906, gave notice to the party in possession, J. Lucente, to vacate the premises in thirty days. The defendant denied any sale or assignment and no attention was paid to this notice, and the first year, or first term of the lease having expired on November 15, Canónico instituted this action of ejectment on November 17, 1906. On December 31, 1906, the defendant filed a motion to set aside the service of the writ, etc., and on December 12, A. Lucente, the original lessee, filed a petition to intervene as defendant and the proceedings in the attempt to set aside the service of the summons and rule of reference were pending in court until January 22, 1907, when they were disposed of by the court, the rule of reference being set aside and the motion to set aside the service of the writ being overruled. On February 1, 1907, the defendants filed their pleas, answer and abstract of title.
    No notice was ever given by lessee to Canónico or to Boor, the original lessor, of an intention to occupy the premises for the further term of four years. On the trial of the case appellant contended that in the absence of notice of an election by the lessee the landlord had a right to treat him as a trespasser and maintain his action of ejectment, but the court held that the mere holding over by the tenant was sufficient notice to the landlord, and that no other notice of election on his part was necessary.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in refusing binding instructions for plaintiff.

      W. H. Ruppel, for appellant.
    Where the landlord wishes to resort to the remedies provided by the acts of 1772 and 1863 it is necessary to give the three months’ notice, but where the action of ejectment is resorted to for the recovery of possession no such previous notice is necessary: Lesley v. Randolph, 4 Rawle, 123; Logan v. Herron, 8 S. & R. 459; Overdeer v. Lewis, 1 W. & S. 90; Hemphill v. Flynn, 2 Pa. 144; Evans v. Hastings, 9 Pa. 273; McCanna v. Johnston, 19 Pa. 434; Rich v. Keyser, 54 Pa. 86; Williams v. Ladew, 171 Pa. 369; Smith v. Littlefield, 51 N. Y. 539.
    While the question here presented has not perhaps been squarely decided by the courts of our state yet we think an examination of the cases will lead to the conclusion that our contention is a proper one: Phillips v. Monges, 4 Whart. 226; Times Co. v. Siebrecht, 15 Phila. 235; Pollman v. Morgester, 99 Pa. 611; Harding v. Seeley, 148 Pa. 20; Cairns v. Llewellyn, 2 Pa. Superior Ct. 599; Lipper v. Bouvé, Crawford & Co., 6 Pa. Superior Ct. 452; Wynkoop v. Argue, 33 Pa. Superior Ct. 26; Schuyler v. Smith, 51 N. Y. 309; Andrews v. Marshall Creamery Co., 60 L. R. A. 399.

      A. L. G. Hay, with him Valentine Hay, for appellee.
    We contend that if there is any ambiguity in the lease, or if the term is of doubtful duration, that it must be construed most favorably to the tenant: Kaufman v. Liggett, 209 Pa. 87; Harding v. Seeley, 148 Pa. 20; Cairns v. Llewellyn, 2 Pa. Superior Ct. 599.
    A holding over by a tenant who has an option for an additional term is notice to his landlord of his election to exercise his privilege, is generally held in this country: Rohboch v. McCargo, 6 Pa. Superior Ct. 134; Harding v. Seeley, 148 Pa. 20; Gilbert v. Price, 18 Pa. Superior Ct. 359.
    July 14, 1909:
   Opinion by

Henderson, J.,

The defendants set up as a defense to the action a lease in writing executed by the plaintiff’s vendor granting the premises described in the writ to A. Lucente, one of the defendants, for the term of one year from November 15, 1905. The lease also contained the following provision: “The party of the second part to have the right to said lot of ground and the stable in the rear for one year, from said date with the right for a further term of four years from the 15th day of November, 1906.” The plaintiff afterward bought the title of the lessor and now claims the right of possession because the lessee did not give him notice before the expiration of the term that he intended to remain in possession for the further term. The court refused to affirm the plaintiff’s third point to the effect that if the lessee desired to retain the premises for the further period of four years it was his duty to give notice of such election to the landlord at or before the end of the year. Our attention has not been called to any cases in this state which support the appellant’s position. Those cited by the learned counsel are cases where the tenant held over without any contract for ah additional term or where there was a provision in the lease for notice of an intention to exercise the option. It was in the power of the lessor to provide for notice if it were to his advantage that it be given and we ought not to introduce into the contract a provision which he did not put there. Every man’s grant is to be taken most strongly against himself. The tenant had the privilege under the lease of continuing in possession for an additional period of four years. He chose so to do and remained in possession after the end of the first period. No other notice of his intention to exercise his right to an extension of the term was necessary. This is the decision in Lipper v. Bouve, Crawford & Co., 6 Pa. Superior Ct. 452, wherein President Judge Bice carefully considered the point and cited numerous authorities to that effect, among which is Harding v. Seeley, 148 Pa. 20, in which it was said that it is generally held in this country that a holding over by a tenant who has an option for an additional term is notice to his landlord of his election to exercise his privilege. It is unnecessary to elaborate the discussion of the case, as we consider it settled by the authorities referred to.

The judgment is affirmed.


author: Rice, P. J.,

text:
    Koble v. Bennett, Appellant.

      Will — Construction—Devise to wife — Life estate — ■Fee simple.

    Where a testator gives and bequeaths to his wife the residue of his “ personal property and real estate absolutely, to have and to hold the same for her own use and benefit, so long as she shall remain unmarried, and if she shall marry again, then she shall be restricted to such estate therein as she would have been entitled to if I died without a will,” and the widow dies without having married, she dies seized of an estate in fee simple in the real estate.
    Argued Feb. 23, 1909.
    Appeal, No. 17, Feb. T., 1909, by defendant, from judgment of C. P. Clinton Co., Oct. T., 1907, No. 119, on verdict for plaintiffs in case of Harrison Isaac Koble et al. v. Moses F. Bennett.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Ejectment for a house and lot in the borough of Mill Hall. Before Hall, P. J.
    The opinion of the Superior Court states the case.
    Verdict and judgment for plaintiffs. Defendant appealed.

      Errors assigned were in giving binding instructions for plaintiffs, and subsequently in refusing judgment for defendant non obstante veredicto.

      W. C. Kress, with him H. T. Hall, for appellant.

      R. B. McCormick, for appellees.
    July 14, 1909:
   Opinion by

Rice, P. J.,

The question presented by this appeal is what estate did Maggie E. Koble take under the following clause of her husband’s will: “Third: After the payment of the debts and expenses above mentioned, I give and bequeath to my wife, Maggie E. Koble, the residue of my personal property and real estate absolutely, to have and to hold the same for her own use and benefit, so long as she shall remain unmarried and if she shall marry again, then she shall be restricted to such estate therein as she would have .been entitled thereto if I had died without a will.” The testator died without issue and the widow remained unmarried until the time of her death.

1. If, as the learned judge of the orphans’ court held, the word “absolutely” must be construed as referring to the personal property only, the judgment entered by him was right. But we are unable to find support for this construction in the language of the gift or in any of the authorities cited. In Cooper v. Pogue, 92 Pa. 254, it was pointed out by Mr. Justice Mercur that in the paragraph of the will then under construction the words “I give” were used twice, once before the use and product of the real estate were devised, and once after the personal estate was specified. Speaking of the latter gift, he said: “How does he give it? Not as he has given the products of the land so long as she remains his widow, but 'to be hers and to belong to her for ever.’ The distinction is thus clearly made between the real and the personal estate. The former is given to her for life, the latter for ever. This view gives effect to the letter and spirit of the will. It would be giving an unnatural interpretation to the clause to say the latter ‘I give’ refers to the use and products of the lands. They had already been given in distinct and appropriate language.” It was in that case possible to show by the very language of the separate and distinct gifts that the testator intended the words “to be hers and belong to her for ever,” following the gift of the personalty, to relate to and characterize that gift only. In the will now under construction no such distinction was made. The testator blended the residue of the real and personal property in one gift and gave both absolutely, one as absolutely as the other. It is thus seen that neither the ruling nor the reasoning of Cooper v. Pogue gives support to the construction which would restrict the word to the gift of the personalty. The intention of the testator to give to his wife the same interest in the real estate as in the personalty is clear, and as will be seen by a perusal of some of the cases hereafter cited this is an important consideration.

2. We come then to a consideration of the position taken by counsel for the appellee. Speaking of the words, “I give and bequeath to my wife Maggie E. Koble the residue of my personal property and real estate absolutely,” counsel frankly admits that words could not have been employed which would be better fitted to give the whole estate absolutely to the wife or which would more clearly express the intention. In making this admission counsel did not go beyond the doctrine of decided cases construing wills executed even prior to the Act of April 8,1833, P. L. 249, sec. 9. In Hope v. Rusha, 88 Pa. 127, the language of the devise was :• “ I give and bequeath to my son Aaron the plantation whereon I now live absolutely” and this was immediately followed by a bequest to the same person of certain articles “absolutely.” Mr. Justice Sharswood said: “ Still as to wills executed prior to that act if there is enough to indicate the intention of the testator to give a fee — no technical words are required.” In support of this proposition he cited Loveacres v. Blight, Cowp. 352, wherein speaking of a devise of land “freely to be enjoyed” Lord Mansfield remarked: “The testator has charged the estate with the payment of an annuity to his wife, so that he could not mean by the word ‘freely’ to give it free of encumbrance. The free enjoyment, therefore, must mean, free from all limitations; that it is the absolute property of the estate.” Judge Sharswood then proceeds: “In the will before us it is clear that the testator meant to give to Aaron the same interest in the plantation as in the personal estate bequeathed to him. In its ordinary sense it means the full and entire property. In that sense we have just seen that Lord Mansfield uses the words. So also Chief Justice Tilghman. He says in Morrison v. Semple, 6 Binn. 94: ‘No technical words are necessary to pass a fee simple. Any expressions which show an intent to give an absolute estate are sufficient.’” But says counsel, the words “to have and to hold the same for her own use and benefit so long as she shall remain unmarried” are words of limitation, and the widow therefore took a life estate, because her interest might possibly last for life, while yet remaining liable to be determined sooner on the happening of the contingency of her remarriage. The words would be so construed if there were nothing in the will to justify the conclusion that the testator intended differently: Cooper v. Pogue, 92 Pa. 254; Long v. Paul, 127 Pa. 456; Redding v. Rice, 171 Pa. 301; Long v. Hill, 29 Pa. Superior Ct. 606. But the words have no such technical or legal signification when employed in a will as will prevent the courts from carrying out the actual intention of the testator to give a fee subject to being cut down upon the happening of the contingency, if such intention is discoverable upon a fair construction of the whole will. This is very clearly shown by Redding v. Rice, 171 Pa. 301, where the words were, “I will and bequeath all my real and personal property to my beloved wife, Mary, to have and to hold the same for her own proper use and behoof as long as she shall remain my widow.” The first inquiry that a reading of the entire paragraph now under construction naturally suggests is this: If the testator intended to give a life estate only, and to die intestate as to the remainder, why did he use the word “absolutely”? We can find no answer to that question in the context. The word may as well have been omitted, if such had been his intention; the widow’s right and dominion during widowhood would have been as complete without it as with it. But before treating the word as superfluous we must endeavor to give it effect if we can do it without rejecting the subsequent words, or distorting them or wresting them from the meaning the testator intended them to have. The ease of Oswald v. Kopp, 26 Pa. 516, is an apt illustration of the general rule that in the construction of an instrument of writing effect is to be given, if possible, to all of its language, because it was applied in the interpretation of the word “absolutely. ” There the testator gave to his wife, Louisa, “ so much of my land and personal estate as the law allows her under the intestate laws of Pennsylvania absolutely.” After giving a small legacy to another the testator gave the residue of his estate to his wife for life, remainder to a brother and sisters, share and share alike. He died without issue. The court said: “If the word ‘absolutely’ had been omitted from the devise, the widow would have taken a life estate only in the quantity allowed by the intestate laws. But the insertion of that word in the will shows that the testator intended to give her a fee simple. To hold that she took merely a life estate is to give no effect whatever to a word of known significance. There are other reasons in support of this construction, but it is not necessary to state them, as the case is a clear one.” We do not cite this case as authority for the proposition that the word “absolutely” must always be construed in a will as giving a fee, but as showing that according to its ordinary and well-known meaning it is sufficient to carry a fee, and is of the highest significance in determining whether such was the intention of the testator. This has been recognized in many cases cited in the brief of appellant’s counsel where the word has come up for interpretation. But, to quote the language of Justice Strong : “No principle is better settled than that if a testator in one part of his will give to a person an estate of inheritance of lands, or an absolute interest in personalty, and in a subsequent passage unequivocally shows that he means the devisee or legatee to take a less interest only, the prior gift is restricted accordingly:” Sheets’s Estate, 52 Pa. 257. This statement of the principle is in entire harmony with the rule as thus stated by Sharswood, J., in Mickley’s Appeal, 92 Pa. 514, and recognized in numerous cases both before and since. “The first taker is always the first object of the testator’s bounty, and his absolute estate is not to be cut down to an estate for life, or what is practically the same thing, to be subjected to an executory gift over upon the occurrence of the contingency of death or death without issue at any future period within the rule against perpetuities without clear evidence of such an intent.” Here the testator died without issue. His wife was the principal object of his bounty. In disposing of his estate he blended his real estate and personal property and gave the entire residue, after payment of his debts and funeral expenses, to her in terms which, without the aid of the act of 1833, would carry a fee, and he made no devise over after her death. This, therefore, is a plain case for the application of the principle that the absolute estate of the principal object of the testator’s bounty is not to be cut down to an estate for life without clear evidence of such intent. It is not necessary to reject the words which follow this gift of an absolute estate, in order to hold that the widow took more than a life estate. There is much less reason for holding that the testator used them in a technical sense than for holding that he used the word “absolutely” in a restricted sense, or had no definite idea of its meaning. The testator had one contingency in mind, and the will does not show that he had any other, upon the happening of which he intended that her absolute estate should be cut down to the interest the intestate laws would give her, and that was her remarriage. The words “so long” are not uncommonly used in ordinary speech in the sense of “if” and “provided.” Accordingly, where a testator devised all his estate, real, personal and mixed, to his wife “ and her heirs and assigns forever so long as she remains my widow” and she died without having remarried it was held that she took a fee: Scott v. Murray, 218 Pa. 186. This conclusion was not reached by construing the words “so long as she remains my widow” as repugnant to the grant, and therefore rejecting them, but by construing them in connection with the grant as attaching a condition. The court said: “These words, however, do not indicate any intention to cut down the quantum of estate granted, which is never done except in obedience to a clear intent. No such intent is expressed here. On the contrary, the words are equivalent to saying ‘provided she remains my widow,’ and instead of cutting down the estate, merely attach a condition which made it defeasible in toto on a breach. The widow not having remarried died seized in fee.” In the present case the testator did not use words of inheritance, but he as clearly expressed his intent that his widow should have the entire residue of his real and personal property absolutely as if he had used such words, and therefore the principle is applicable. If the case is not as strong for a fee as that case it certainly is as strong as Redding v. Rice, 171 Pa. 301.

The judgment is reversed, and judgment is now entered for the defendant.


author: Morrison, J.,

text:
    Commonwealth v. Richardson, Appellant.

      Appeals — Assignments of error — Evidence.
    The appellate court will not consider assignments of error to the admission of evidence where such evidence is not set forth in the assignment.
    Argued April 26, 1909.
    Appeal, No. 61, Oet. T., 1909, by defendant, from judgment of Q. S. Phila. Co., Sept. T., 1908, No. 416, on verdict of guilty in case of Commonwealth v. Anthony Richardson.
    Before Rice, P. J., Porter, Henderson, Morrison, Orladt and Head, JJ.
    Affirmed.
    Indictment for perjury. Before Audenried, J.
    Verdict of guilty, upon which the prisoner was sentenced to three years in prison.

      Errors assigned were in the following form:
    1. The learned judge erred in ruling that the affidavit taken by Anthony Richardson before Magistrate Gorman outside of the district of court No. 15, for which Magistrate Gorman was commissioned magistrate could constitute a ground for the prosecution of perjury if false.
    2. The learned judge erred in admitting in evidence the testimony of James E. Gorman relative to the oath of Anthony Richardson to a justification of bail taken outside the territorial limits prescribed for the location of the office of the said magistrate’s court.
    3. The learned court erred in admitting the record of the suit instituted by W. S. Lieb against Anthony Richardson as of C. P. No. 3, March Term, 1907, No. 2,419.
    4. The learned court erred in admitting in evidence the judgment in said suit without requiring proof that the said Anthony Richardson had actual notice of the existence of said judgment.
    5. The learned court erred in admitting in evidence five separate unsatisfied judgments entered in the court of quarter sessions against Anthony Richardson without requiring proof of actual knowledge on the part of the said Anthony Richardson of the existence of the said judgments.
    6. The learned court erred in admitting in evidence the testimony of Magistrate Gorman in reference to the bail bonds signed by Anthony Richardson in the case of Commonwealth v. John T. Gilson, said bail bonds having been signed and justification taken at Fifteenth and Arch streets at the House of Detention, outside of the territorial limits prescribed for the location of said magistrate’s court.

      Henry M. Stevenson, with him Maxwell Stevenson, for appellant.

      Joseph H. Taulane, assistant district attorney, with him Samuel P. Botan, district attorney, for appellee. ■
    July 14, 1909:
   Opinion by

Morrison, J.,

The defendant was indicted, tried, convicted, and sentenced for the crime of perjury. We find in the record six several assignments of error but they are each and all in flat violation of our rules and we cannot consider this appeal on its merits because the questions argued are not properly raised by the assignments of error. This will sufficiently appear by a casual reading of the assignments and our rules XIV, XV and XVI, and the decisions of the Supreme Court and of this court in regard to assignments of error.

We have, however, made quite a careful examination of the record in this case, and, on consideration of the arguments and the Act of Assembly of February 5,1875, P. L. 56, and the reasoning of Judge Simonton, and cases cited by him in Com. v. Frank, 7 Pa. Dist. Rep. 143, and also the common law rules in regard to justices of the peace, we are by no means convinced that the oath administered to the defendant by Magistrate Gorman, if knowingly and corruptly false, was not sufficient upon which to base an indictment and conviction for perjury. Note sec. 12 of the act of 1875: “The jurisdiction of each of said magistrates shall extend throughout the city and county of Philadelphia, and they shall be by virtue of their office, ex-officio justices of the peace;” etc.

But it will be understood that the court does not decide this question nor can we decide the conviction illegal because not one of the questions discussed is properly raised.

All of the assignments of error are overruled, the judgment is affirmed, and the record is remitted to the court below to the end that the sentence be fully carried into effect.