author: Beaver, J.,

text:
    Hartje, Appellant, v. Hartje.

      Divorce — Evidence—Question of fact — Adultery.
    On a libel for divorce by a husband against his wife on the ground of .adultery, where both the respondent and the co-respondent deny the charge, and there is no competent evidence to support it, except the testimony of one witness, and such testimony is contradictory and shows a violent bias against the respondent, the court is justified in refusing a divorce.
    Where the respondent in a divorce suit is given no special opportunity to examine or read a letter offered in evidence, and admits that the letter is her own, and such letter is made a standard of comparison with the handwriting in other letters, the respondent may, upon a fuller opportunity being given her to examine it, repudiate it as having been written by her, first, because it was not her handwriting, and, second, because it contained more than was in a letter she admitted she had written to the person addressed in the letter offered in evidence.
    A letter of an incrimiriating character, tom into shreds and pasted together, was offered in evidence in a divorce proceeding as a letter addressed by the respondent to the co-respondent. It was written on a broad side, and there was no appearance of any fold in it. The paper was of such texture as to exhibit the evidence of a folding, if it had been made. It was alleged to have been discovered iü. a pile of ashes or offal at a stable at which the co-respondent worked. Both the respondent and co-respondent denied its authenticity. Experts in handwriting were divided in their opinion as to the genuineness of the letter. Held, that the letter was properly disregarded.

      Divorce — Appeals—After-discovered evidence.

      On an appeal from a decree refusing a divorce, the appellate court will not take original jurisdiction of the case, or remit the case to the lower court for the purpose of taking into consideration after-discovered evidence, where it appears that such evidence is merely cumulative of evidence that had been previously disregarded.

      Argued May 17, 1907.
    Appeal, No. 137, April T., 1907, by plaintiff, from decree of C. P. No. '2, Allegheny Co., Jan. T., 1906, No. 159£, refusing divorce in case of Augustus Hartje v. Mary Scott Hartje.
    Before Rice, P. J., Porter, Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.
    Libel for divorce. Before Frazer, P. J.
    The court below filed the following opinion:
    The testimony shows that the libelant and respondent were married March 15, 1894, and lived together until July 24, 1905, when they separated, respondent, at that time and within two days after the family’s return from a trip to Europe, taking their two children and going to reside at the home of her parents. Immediately after the separation, libelant, through mutual friends and also by a letter to his wife, dated July 26, 1905, endeavored to effect a reconciliation. These efforts proving unsuccessful libelant again wrote his wife, on August 5, 1905, withdrawing his previous request for a settlement of their differences. This latter letter was followed by these proceedings, in which respondent was charged with having committed adultery with Thomas Madine, a coachman who was in the employ of libelant from April 6, 1904, until June 5, 1905, and “divers other persons.” Subsequent to filing his libel and in response to rules for bills of particulars, libelant alleged acts of adultery on the part of respondent with Clifford Hooe, a colored man who was also employed by libelant as a coachman from April to about July 1, 1905, and with a man whose name was not given, whom respondent was charged with meeting at a prominent hotel in this city. Respondent was also charged with visiting and meeting men at an assignation house in Watson street. At the trial no evidence was offered in support of any of these charges except that of adultery with Madine. The failure to even attempt to sustain those charges may and should be treated as an admission of libelant’s inability to prove them. We therefore have before us for determination the single allegation of criminal intimacy with Thomas Madine. In support of that allegation witnesses were called by libelant who testified to occurrences which they said took place between Madine and respondent in the Hartje home; and in addition to that testimony twenty-six letters of a highly incriminating nature were offered in evidence which libelant claimed were written by respondent to Madine. The burden of proof was on libelant to show respondent’s guilt by the weight of the testimony. He must prove the offense charged against his wife either by affirmative testimony or by “circumstances that would lead the guarded discretion of a reasonable and just man to the conclusion of guilt.” Has he sustained the burden? The witnesses called to prove the occurrences which are said to have taken place at the home of the parties, were, with one exception, servant girls who had lived in the family. Of these witnesses Katie Schempel was employed as a cook for about seven weeks beginning in February, 1905, and Fannie Jackolitch, also a cook was there for three months in the fall of 1904, and also from April to June, 1905. The testimony of Katie Schempel as a whole, is rather more favorable to respondent than libelant. Both girls say Madine was frequently in the upstairs part of the house, and while Fannie Jackolitch testifies to one or two incidents which were not consistent with prudent conduct on the part' of respondent, those occurrences, if true, indicate no more than an impropriety. The testimony of Katie Schempel proves nothing, and that of Fannie Jackolitch is of little weight, especially in view of the fact that she admitted, on cross-examination, that Madine when upstairs usually played with the children and that Susie Wagner was generally on the second floor at the same time. Annie Lutz, a seamstress in the Hartje house at intervals during several years immediately preceding the separation, also testified that she had often seen Madine in the upstairs, hall and also in the nursery and that he had slept in the spare room on two occasions during the absence of libelant from home. She, however, also said that she “never saw respondent do anything wrong,” and that she was “kind to the servants, devoted to her children and a good mother.”" Aside from her statement that Madine slept in the spare room on two occasions during libelant’s absence from home, which was denied by both respondent and Madine, there is nothing in her testimony to indicate more than imprudence on the part of respondent. Of the servants in the Hartje house, Susie Wagner, an “upstairs girl,” was the most favorable in her testimony toward libelant. Susie entered their employ September 1,1904, and remained with them until June 1,1905, when she accompanied the family to Europe, leaving them, however, upon their arrival in Liverpool, and going to the home of her parents in Germany, where she remained until the latter part of September, when she returned to this country, arriving in New York about October 1, 1905. This witness testified to several incidents of a highly incriminating nature in which she said respondent and Madine figured. That her story is grossly exaggerated and built upon a very slight foundation, is quite apparent. She is flatly contradicted by both respondent and Madine and is not corroborated in any instance by a single witness. It seems impossible that all the happenings testified to by her should have taken place in the Hartje house and not a single one of them be witnessed by one or more of the other servants. Susie was a strongly prejudiced witness, and, in giving weight to her testimony, we must consider that she was brought to this country from Germany in the fall of 1905, by her brother at the request and expense of libelant, that she was met upon her arrival in New York by libelant and his attorney, that she has been under the influence of relatives of libelant since her return to a considerable extent, that while in New York upon her return to this country she was shown statements purported to have been made by two other servants and told that “she knew the same and maybe more,” that she is not even an ordinarily bright girl, and that she also made a statement to respondent’s attorney, in which she said “that she did not know anything bad about respondent.” We cannot conceive that a married woman of iiitelligence and refinement and the mother of children would be guilty of such intimacy with a male servant as Susie testified respondent was guilty of with Madine. The improbability of her story brands it with suspicion. The testimony of these four servant girls is relied upon to establish incidents happening in the Hartje home, which libelant claims indirectly proves criminal conduct upon the part of respondent. Both respondent and Madine denied all improper conduct charged against them, and called other servants who were employed in the family from time to time during the years 1904 and 1905, who testified that respondent’s conduct was proper at all times and that they had seen no wrongdoing upon her part or undue intimacy with Madine. It was admitted by respondent' that Madine was frequently in the front part of the house and also upstairs. It was, however, denied that he was there at any time for an improper purpose. The weight of the testimony is that he was employed to assist in certain housework, beating rugs, moving furniture and cleaning porches, as well as driving the horses. Among other tilings, it was his duty to drive the little daughter of libel-ant and respondent to the kindergarten she attended, and it is uncontradicted that he usually carried the little girl from the nursery to the carriage in the morning and back to the nursery from the carriage upon bringing her home, and it is also uncontradicted that Madine often at libelant’s request spent the evenings with the children in the nursery while libelant and his wife were out driving. These duties satisfactorily explain Madine’s being so frequently on the second floor. Giving the testimony offered to prove the incriminatory house incidents the fullest credit it is in our opinion entitled to receive, we are clearly of the opinion that it does not establish either directly or by inference a criminal intimacy between respondent and Madine. Respondent’s visits to the stable are relied'upon to assist in sustaining the libel. The téstimony shows that respondent has a fondness for fine horses and took great pride in their horses and carriages. That she visited the stable quite frequently, is admitted. Her visits there, however, were not so common and made under such circumstances as to justify even an inference of criminal intimacy with the coachman, and were it not for the testimony of a sister óf libelant, who says that upon going to the Hartje stable one morning she saw respondent and Madine coming from an alcove, I should not deem it necessary to even refer to that branch of the case. The witness said respondent was embarrassed,' and that she, the witness, felt very much as though she had intruded. Respondent denied receiving a call from the witness under the circumstances detailed by her. Assuming, however, that witness called at the Hartje house and found respondent at the stable, the occurrence, it seems to me, was not at the time looked upon by her in an unfavorable or suspicious light. She said nothing to either her sister-in-law or libelant about the incident and continued upon friendly and intimate terms with respondent until respondent’s separation from her husband. While it is quite probable that the witness went to the stable as she testified and found respondent and Madine both there, the circumstance indicates no more than indiscretion upon respondent’s part, especially as the stable doors were open and afforded an opportunity to any person to walk in without notice or warning. While respondent visited the stable perhaps oftener than prudent women customarily do, her fondness for fine horses and carriages, in which she was encouraged by her husband, is to a certain extent an excuse for what the testimony at most shows was an indiscretion upon her part.
    In addition to the testimony of incidents at the Hartje home, libelant offered in evidence to support his libel, twenty-six letters which he claimed were written by his wife to Madine. These letters, if written by her, contain sufficient admissions to convict her of the improper conduct charged in the libel. To establish their genuineness, which was denied by both respondent and Madine, comparison was made with certain admitted letters and writings of respondent, which were used as standards. Among the standards first offered was a letter addressed to Susie Wagner, the servant above referred to, and marked exhibit No. 6. This letter was at first, upon a casual examination, admitted by respondent to be in her handwriting; subsequently, however, upon further examination, it was repudiated by her. In libelant’s case in chief, he and two experts on handwriting testified that all the disputed letters were- in the handwriting of respondent and a third expert testified that some of them were written by her. The testimony of these witnesses was very much weakened by their testifying that exhibit No. 34, an envelope addressed to Madine, was also written by respondent; that envelope was undoubtedly addressed by a sister of respondent; the young lady so testified, and stated the circumstances ’ under which it was addressed, and while on the witness stand at the request of counsel addressed two envelopes with the same inscription as that contained on exhibit No. 34, which to my mind clearly established the identity of her handwriting. The testimony of these witnesses and the experts who were afterwards permitted to testify in regard to exhibit No. 6, the Susie Wagner letter, was not convincing. While they selected letters and words in both the standard and disputed writings that were almost identical in form and shading, they admitted that the writing in the standards was angular and irregular, while that in the disputed letters was round and uniform — in other words, that the penmanship of the disputed letters was better than that of the standards and more easily read. These experts also admitted a difference in the pictorial effect in the writing in the two sets of letters; on the other hand, the experts and other witnesses called by respondent to disprove the letters, almost without exception sustained their opinions with substantial reasons. These witnesses included members of respondent's family, experts of national reputation, bank officers of this city, and teachers of penmanship in our city high school. Practically but three persons, libelant and two experts on handwriting, testified that the disputed letters (excepting exhibit No. 6) were written by respondent. The opinion of these experts was based upon a comparatively brief examination of the papers. Subsequently, however, these and other experts were permitted to testify upon further examination as to the genuineness of the “Susie Wagner letter,” exhibit No. 6. Whether that letter is in the handwriting of respondent, is very material in determining whether or not the other disputed letters were written by respondent. A number of the experts called on each side testified that the person who wrote exhibit No. 6 also wrote many of the other disputed letters. The penmanship of that letter is certainly different in several particulars from that of respondent. While the writing in exhibit No. 6 resembles that of respondent, an inspection reveals considerable difference from her admitted penmanship, both in the formation and shading of the letters and also in the pictorial effect of the writing. Instead of the angular formed letters of the standards, the writing in the Susie Wagner letter is round, and instead of being written in the nervous and careless style of respondent, the letter -has every appearance of deliberate preparation. The letter, in our opinion, is not in the handwriting of respondent. This conclusion is strengthened by the circumstances under which it reached Miss Wagner. Respondent says she wrote Susie but two letters, one from London and the other shortly after her return from Europe, and Susie says she received two letters from respondent while in Germany, one written in London and the other in Pittsburg; this latter one she says she brought with her to this country, and upon her arrival in New York about October 1, gave it to libelant’s brother. The disputed letter, exhibit No. 6, was not received by'her until the latter part of November, and was forwarded to her by her mother from Germany almost two months after her return to this country, and more than six weeks after respondent had seen and talked with her in this city. The letter, like the other disputed ones, is not dated, nor is the post-marked envelope produced with it. In addition to respondent’s denial that she wrote the letters, and that of Madine that he ever received them, and the testimony of the experts, which is overwhelmingly to the effect that the disputed letters were not written by respondent, there are several circumstances which strongly confirm that conclusion. The fact that not a single one of the disputed letters bears a date, attaches suspicion to them, as does also the fact that but a single post-marked envelope accompanies them, and that one certainly not in respondent’s handwriting. With these circumstances must also be considered the manner in which libelant claims to have obtained possession of the letters. We know of no law that authorizes a litigant to commit a felony or other crime for the purpose of enabling him to secure evidence to sustain his litigation, yet, in this case, if their testimony is true, libelant’s detectives entered the boarding house of Madine for the purpose of robbing him, and actually did take from him papers that had no connection with this case whatever. While they say that, at the same time, they also secured the disputed letters from Madine’s trunk, Madine says he never had them in his possession, and never saw them until they were produced in court and offered in evidence. It was argued that Madine’s denial should have little weight on account of his interest in the determination of this case; it can also be said that those who contradict him in regard to the letters are self-admitted lawbreakers. We saw nothing in the manner of Madine as a witness that suggests any reason why he is not as worthy of belief as the two detectives who say they robbed him. In addition to Madine’s denial, the detectives are flatly contradicted in material parts of their testimony by both the woman who kept the boarding house and her daughter; and, further, if these letters are genuine and were obtained from Madine’s possession, why were they so mysteriously mailed in bundles at intervals to libelant’s counsel by libelant’s brother-in-law, to whom they were given by the detectives, instead of being delivered personally? This latter circumstance was not satisfactorily explained, and it alone is sufficient to stamp the letters with suspicion. On the whole, instead of libelant establishing the genuineness of the disputed letters, as the burden was on him to do, by the’weight of the testimony, the preponderance of the evidence shows that these letters are not in the handwriting of respondent. Giving the testimony offered by libelant the fullest credence it is in our opinion entitled to receive, we are clearly of the opinion it fails to sustain the libel and convict respondent of criminal intimacy with Thomas Madine. We are confirmed in this conclusion by the failure of libelant to furnish any account of what facts came to his knowledge concerning the conduct of his wife, or how he became advised of them during the interval between his two letters to her of July 26 and August 5, above referred to. Immediately after respondent went to the home of her parents, libelant through his brother and also through an intimate lady friend of respondent, endeavored to induce her to return to him, and in addition to personal requests upon the part of these persons, libelant, two days after the separation, wrote his wife, asking her to return to their home; the letter begins, “My dear Mary,” and, after reciting that his brother had informed him of respondent’s absolute refusal to return home, imploringly asks her “as.his wife” to come back, and closes with the words, “Lovingly yours.” Certainly, when libelant wrote that letter, there was not even a suspicion in his mind of improper conduct upon the part of his wife. There being no evidence to the contrary, we must assume that up to this time libelant had not the slightest reason to suspect his wife of being criminally intimate with either Madine or any other person. Had he even suspected her of wrongdoing, that letter would not have been written. Ten days later he wrote her again, as follows: “ Since my letter to you of July 26-95, asking you to come back, facts have come to my knowledge which give me ample reasons to recall my request for your return to me. I therefore recall the offer made in that letter.” Yet in his testimony at the trial there is not a single wqrd indicating what facts had come to his knowledge between the writing of the two letters that gave him “ample reason” to recall his request for a reconciliation. Certainly, he had not learned what Susie Wagner would testify to, as she was then in Europe. There is no evidence to show that he even knew where the other servant girls were at the time, or had' any information as to what they would testify to, and he could not have known of the incriminating letters as they were not taken from Madine’s trunk until about a year afterwards, according to the detectives’ testimony. What knowledge had ’ he acquired, in the meantime concerning his wife’s conduct? The testimony fails to show that he had obtained any information on that subject. While his failure to show what information he received during that interval is not conclusive against the truthfulness of his charges against his wife, it is, especially under the circumstances of this case, an omission that not only detracts from the value of the testimony offered to support the charges, but goes directly to the good faith of the accusation. In view 6f the conclusion reached above, we deem it 'both unnecessary and inadvisable to discuss the affirmative testimony offered by respondent to show adulterous practices on the part of libelant, especially as that testimony will no doubt be at least partially relied upon by respondent to sustain the libel in her proceeding against her husband for a limited divorce, which is now pending.
    November 18, 1907:
    And now, December 12, 1906, decree refused and proceedings dismissed at cost of libelant.

      Error assigned among others was decree refusing divorce.

      J. S. Ferguson, with him John Marrón and W. B. Rodgers, for appellant.

      M. W. Acheson, of Patterson, Sterrett & Acheson, and John M. Freeman, of Watson & Freeman, for appellee.
   Opinion by

Beaver, J.,

The libel in this case charges the respondent with a violation of her marriage vows and names as co-respondent Thomas Ma-dine, who was in the employ of the libelant for a considerable period.

The case was tried at great length and with painstaking care in the court below. The testimony is very voluminous, covering over 2,000 printed pages in addition to the lithographed exhibits.

The opinion of the court below states the admitted facts of marriage, the condition of the family and the separation, which need not here be recounted. The trial judge also makes an analysis of the testimony in the case and upon this bases his reasons for refusing the prayer of the libelant.

The decree “And now, December 17, 1906, decree refused and proceedings dismissed at the cost of the libelant,” and the allegation that “The court erred in not mailing and entering a decree granting the libelant a divorce, a vinculo matrimonii, as against the appellee,” constitute the tenth and eleventh assignments of error.

The appellant’s counsel, in their argument, say: “We insist upon the errors set forth in the various assignments, but after all the principal question is the one that we have argued, that under all the evidence the libelant was entitled to the decree which he asked for.”

This, of course, is the crucial question, and to it we have given careful heed, basing our conclusions upon a full consideration of all the evidence in the case.

This evidence is of two kinds. First, the testimony of servants employed in, and friends of, the family, familiar with the relations of the parties and the family life. With the exception of that of a single witness, this testimony is not only not convincing but is scarcely sufficient to arouse even a suspicion of improper relations between the respondent and the corespondent. If, as appears from all the testimony, the latter was called from the stable to the house to assist in certain parts of domestic service, such as the moving of heavy furniture, the turning of mattresses, etc., and if, as appears from the testimony of some witnesses, he was engaged in certain portions of domestic service which necessarily involved his presence in the house, and was accustomed to carry at least one of the children from the nursery to the carriage and vice versa, his frequent presence in the house is fully accounted for. This being so, the facts narrated by the witnesses, with the single exception already referred to, even if true and taken at the worst, cannot be construed into anything more than indiscretion and possibly a lack of womanly reserve and sensitiveness in the matter of dress, etc., in the presence of a servant.

And so the presence of the respondent in the stable is explained by her interest in her horses and in the general management of the stable, of which she seems to have had, in some respects at least, practical control.

The excepted witness, to whom reference has been made, is Susie Wagner. She was evidently a strongly prejudiced witness. It is impossible to read her testimony, even without seeing the witness, without reaching this conclusion. She was brought from Germany by the libelant and was met, on her arrival in New York, by him and his counsel. She not only states alleged facts, but in drawing inferences from them does so uniformly at the expense of the respondent. Her environment at the time of the trial, the explicit denial by the respondent and co-respondent of every material incriminating allegation, the statement made to the counsel of the respondent, steno-graphically taken down at the time,. in .which she expressly admitted, in answer to the question, “You said you didn’t know anything bad about Mrs. Hartje, didn’t you?” she answered “Yes, sir,” together with other equally contradictory statements, all force the conviction that her testimony is to be, to say the least, received not only with great care but with suspicion and such well-founded doubt as to preclude a conclusion such as we are asked to deduce from it.

As to the second land of evidence, which is by far the most important, and which, if convincing, would almost necessarily preclude any other conclusion than that the facts, as stated in the libel, were true, we have given to it careful and painstaking consideration. The incriminating part of this evidence consists of many letters, alleged to have been written by the respondent to the co-respondent. Whether or not these letters are genuine is the serious question involved. Their authenticity is absolutely denied by both the respondent, who says she never wrote them, and by the co-respondent, who says he never received them. They were, however, in the trial, the subject of a mass of expert and other testimony which is commented upon at considerable length by the trial judge in his opinion.

The expert testimony is based largely upon two exhibits offered by the libelant, known as No. 6 and No. 35. The introduction of No. 6, although not in any particular unusual, is somewhat peculiar, in view of what followed. Nos. 1, 2, 3, 4 and 5, admittedly genuine, were declared by the respondent, who was upon the stand, as having been written by her. When No. 6 was produced, the question was asked: “I hand you a letter marked exhibit 6, addressed to 'My dear Susie,’ and I ask you if that is a letter written by you? A. Yes, sir. Do you want me to tell what is in this letter? Q. No, I can read the letter, Mrs. Hartje. You did have a servant named Susie? A. Yes, sir.” It will be observed at once that the witness had no special opportunity to examine or read the letter. This letter, so admitted, was made the standard of comparison with many that followed and is one of the focal points of discussion and contention in the case. Many of the experts say that the hand which wrote No. 6 wrote the most of the letters alleged to have been written by the respondent to the co-respondent, which, if the fact were established, would almost inevitably lead to the conclusion that the charges contained in the libel were true. Subsequent to the admission of the letter and, when the respondent had an opportunity to examine it, she repudiated it as having been written by her, first, because it was not in her handwriting, and, secondly, because it contained more than was in the letter which she admitted she had written and sent to Susie Wagner.

Another exhibit, around which battle , fiercely raged, was No. 35. Both the communication itself and the circumstances attending its production are peculiar. It was alleged to have been written by the respondent and sent to the co-respondent. It was alleged to have been discovered in a pile of ashes or offal at the stable months after the separation of the libelant and the respondent and after the co-respondent had quitted the employ of the .libelant. It was in shreds or small pieces and was pasted together, certain parts being omitted — presumedly not found- — but enough of it remains to determine with sufficient clearness that it could scarcely have been written by an innocent woman to an innocent man. The respondent denies explicitly that she. ever wrote.it and the co-respondent, with equal emphasis, denies that he ever received it. It is written upon a broad side. It is evident that it was never folded. No evidence of any fold appears, either in the original which was exhibited to us or in the photograph which we have before us. The paper is of such texture as to exhibit the evidence of a folding, if it had been made. If written by the respondent and sent by her to the co-respondent, it must have been sent to him by the hands of a third person. It is not conceivable that this could have been done, without its having been folded. If the testimony,of the respondent and co-respondent is worthy of any credence whatever, if the simple circumstance to which we have alluded has any significance, if the testimony of those who are most familiar with the handwriting of the respondent has any value, it would seem as if the experts — and they are numerous — who testify that it was not written by the respondent, should be taken of such corroborative force as to make the question of the genuineness of this letter very doubtful. Certain it is that this to our mind is not established by the preponderance of evidence. We are not unmindful of the number, character, ability and reputation of the experts in handwriting who testify on behalf of the libelant as to the genuineness of exhibits Nos. 6 and 35, but their testimony is not more convincing than is that of those who testify on behalf of the respondent who reach a different conclusion.

No specially useful object will be attained by further details of discussion. Following the lines already indicated in what we have said in regard to these exhibits, we reach the conclusion that the allegations of the libel are not sustained by a preponderance of evidence. This it was clearly the duty of the libelant to do in such a way as to satisfy the trial judge in the court below, or to satisfy us upon re-examination of the whole case. The trial judge was not satisfied. We are not satisfied. And upon this branch of the case, therefore, we agree with the conclusion reached by the trial judge, for many of the reasons stated by him in his opinion dismissing the libel.

A number of questions, relating to the admissions of evidence, are raised by other assignments of error. We are unable to see, upon a careful examination of them, or of the testimony admitted or excluded, that they can in any way seriously affect the conclusion reached. For the most part they relate to the admission or rejection of evidence offered in rebuttal. This is always very largely a question within the discretion of the judge, even where it arises in the trial of a case before a jury. It becomes even more a matter of discretion when the case is tried before a judge who, by reason of his ability to weigh and determine the value of evidence, is not likely to be misled. So far as we can judge of the character and materiality of the offers of evidence which were excluded, taking them at their full value, so far as that can be ascertained from the offers themselves, we cannot see that they could have materially influenced the decision of the court, and, assuming all that is contained in the offers, so far as we can determine the value of the testimony offered therein, it would not influence us in the conclusion which we have reached.

In the hearing of this case before us, it was fully, ably and elaborately argued, and to both oral and printed arguments we gave, and have given, the fullest consideration. We are indebted to counsel of both sides for the industry displayed in their printed arguments and for the ability manifested in the presentation of the case from every point of view.

We have not regarded it as desirable to traverse more fully the ground covered by the opinion of the trial judge in the court below, but have contented ourselves with giving very briefly some of the reasons which lead us to the conclusion reached by him in the final disposition of the case.

The decree of the court below, dismissing the libel, is hereby affirmed, the assignments of error are all overruled and the appeal is dismissed at the costs of the appellant.

After this case was argued here and the conclusion reached which is announced above, a petition was presented on behalf of the libelant, setting forth in detail certain alleged after-discovered evidence and praying this court “to assume original jurisdiction of the matter and to take such steps and make such orders for the taking of testimony in support of this petition as to the court shall seem meet,” and, in the event of our declining to do so, that we “suspend, consideration of the appeal now pending and remit the cause to the court below for the taking of such testimony.” In the answer filed by the respondent and on the argument upon the case as presented by the petition and answer, the power of this court to take the testimony or to remit the case to the court below for the taking thereof was distinctly admitted, so that for the purposes of this case it is not necessary for us to discuss this question.

Assuming, therefore, that we have the power to grant the prayer of the petitioner, as we do only for the purposes of this case, we dispose of it upon the contents of his petition and the accompanying exhibits, and of the answer thereto as filed by the respondent.

The petition is accompanied by the affidavit of the libelant, but is not supported by any affidavits of witnesses as to what their testimony would be or as to the manner in which the alleged documentary evidence was procured.

Assuming that everything alleged in the petition can be shown, we have a mass of letters alleged to have been written by the respondent which, in effect, are only cumulative and which raise no new question, and some written by other persons which are wholly immaterial to the issue and can throw no light upon it. As to ' the alleged facts to be proved by the co-respondent, his testimony, if correctly represented in the petition, must necessarily start with a declaration which would utterly discredit him as a witness and would lead only to the elimination of his testimony already taken which, if done, would not, in our opinion, materially change the general aspect of the case and would not lead to any different result.

In this connection we have also considered the supplemental petition accompanied by the affidavits of the mother and sister of the alleged co-respondent, but can find nothing in it or them which leads us to change our conclusion or warrants us in granting the prayers of the petitioner.

The prayers of the several petitions for suspending the case for the purpose of taking additional testimony are denied.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Newcastle City v. Treadwell, Appellant.

      Sunday law — Municipal ordinance — Sale of newspapers — -“Goods, wares and merchandise.”

    A municipal ordinance forbidding the sale .on Sunday of “goods, wares, merchandise, or other articles and things whatsoever,” applies to newspapers kept for sale upon the shelves or tables of a newsdealer.
    Argued Oct. 8, 1907.
    Appeal, No. 100, April T., 1907, by defendant, from judgment of Q. S. Lawrence Co., June T., 1907, No. 83, on case stated in suit of City of Newcastle v. A. W. Treadwell.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.

      November 18, 1907:
    Case stated on an appeal from a judgment of the mayor of the city of Newcastle.
    Porter, P. J., found the facts to be as follows:
    This case comes before the court on an appeal from the judgment of M. Louis Hainer, mayor of the city of Newcastle, wherein the defendant was adjudged guilty and sentenced to pay a fine of $25.00 for keeping open on Sunday, June 2, 1907, a room or place for the purpose of selling therein and thereat newspapers, and did therein and thereat sell newspapers on the Sabbath, commonly called Sunday, in violation of an ordinance of the city of Newcastle, entitled: “An ordinance prohibiting under penalty the desecration of the Sabbath or Lord's Day, commonly called Sunday,” approved June 30, 1900, which provides, inter aha:
    “Section 1. Be it ordained and enacted by the Select and Common Councils of the City of Newcastle, Pennsylvania, that it shall be unlawful for any person to keep open any store, room, or place, or maintain any stand, for the purpose of selling therein or thereat any fruits, candies, goods, wares, merchandise, or other articles and things whatsoever, or to sell any of the aforesaid in any such store, room, or place, or at any such stand, or at or in any other place within said city on the Lord’s Day or the Sabbath, commonly called Sunday. But this provision shall not apply to keeping open any room or place for the purpose of selling, or to the sale of any necessary medical- or surgical supplies, milk and such necessaries of life and other articles and things as are or may be necessary in works or matters of necessity, mercy and charity.”
    The court affirmed the judgment.

      Error assigned was the order of the court.

      H. K. Gregory, with him T. W. Dickey, for appellant.

      James A. Gardner, for appellee.
   Per Curiam,

The validity of the ordinance which is set forth in the opinion of the learned judge below, for the violation, of which the defendant was convicted, is not questioned by his counsel. Nor is it claimed by them that it would be invalid even though it applied in terms to the sale of newspapers at a place or stand maintained and kept open for that purpose. Their contention is that neither the words "goods, wares and merchandise,” nor the words “other articles and things whatsoever” as used in the ordinance ought to be construed to include newspapers. The learned judge below held that newspapers upon the shelves or tables of a news dealer for sale may be properly regarded as goods, wares and merchandise, and in that conclusion we all concur. As was said in the well-considered case of Smith v. Wilcox, 24 N. Y. 353, a newspaper is the subject of property, and, when it is made the subject of sale in places open for that purpose, it is certainly merchandise. See also Commonwealth v. Osgood, 144 Mass. 362. We cannot agree with the appellant’s counsel that this construction is not in accordance with the common understanding of the meaning of the words; nor do we find anything in the context to warrant a conclusion that the corporate authorities in adopting the ordinance intended to exclude this particular kind of merchandise from its operation. .

The judgment is affirmed.


author: Morrison, J., Beaver, J.,

text:
    New Kensington Lumber Company, Appellant, v. German Insurance Company of Freeport.

      Insurance — Fire insurance — Sole ownership — Contractor’s interest.

    Where a policy of fire insurance is issued in the name of the person who is the owner of the insured premises, but the policy is made payable to certain contractors “as their interest may appear,” and on the very day the policy is issued the owner becomes a bankrupt, the policy is avoided both as to the owner and the contractors under the “sole ownership ” clause, although it appears that the insurance was paid for by the contractors, that the insurance company knew this, and that neither the insurance company nor the contractors had any knowledge of the impending bankruptcy of the owner.
    Argued April 9, 1907.
    Appeal, No. 142, April T., 1907, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., Nov. T„, 1904, No. 515, for defendant non obstante veredicto in case of New Kensington Lumber Company v. German Insurance Company of Freeport.
    Before Rice, P. J., Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Assumpsit on a contract of fire insurance. Before Kennedy, P. J.
    The facts appear by the opinion of the Superior Court.

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

      W. W. Smith, of Gordon & Smith, for appellant.
    — An undisclosed principal has the right to enforce a contract made by his agent with a third party, although the third party has dealt with the agent, supposing him to be the sole principal: Girard v. Taggart, 5 S. & R. 19; Merrick’s Estate, 5 W. & S. 9; Gilpin v. Howell, 5 Pa. 41.
    The lumber company is the real insured and has the right to recover on this policy: Zehring’s Estate, 4 Pa. Superior Ct. 243; Carnes v. Farmers’ Fire Ins. Co., 20 Pa. Superior Ct. 634.
    Armstrong, the nominal insured, was not a party to the contract and never had any rights under the policy: DeBolle v. Penna. Ins. Co., 4 Whart. 68; Kountz v. Holthouse, 85 Pa. 235; Guthrie v. Kerr, 85 Pa. 303; Hostetter v. Hollinger, 117 Pa. 606; Adams v. Kuehn, 119 Pa. 76; Delp v. Brewing Co., 123 Pa. 42; Freeman v. R. R. Co., 173 Pa. 274; Crown Slate Co. v. Allen, 199 Pa. 239; Cox v. Phila. Pottery Co., 214 Pa. 373.
    It is settled law that the holder of a mechanic’s hen has an insurable interest: Insurance Company v. Stinson, 103 U. S. 25; 1 May on Insurance, sec. 93.

      Gordon Fisher, of Dalzell, Fisher & Hawkins, for appellee.—
    The appellant lost its rights under the policy simultaneously with the owner’s bankruptcy, and it is immaterial who applied for the insurance or paid the premium: State Mutual Fire Ins. Co. v. Roberts, 31 Pa. 438; Imperial Fire Ins. Co. v. Dun-ham, 117 Pa. 460; Adams v. Rockingham Mut. Fire Ins. Co., 29 Me. 292; Young v. Eagle Fire Ins. Co., 80 Mass. 150; Grosvenor v. Atlantic Fire Ins. Co., 17 N. Y. 391; Kabrich v. State Ins. Co., 48 Mo. App. 393; Continental Ins. Co. v. Hulmán & Cox, 92 111. 145; Loring v. Manufacturers’ Ins. Co., 74 Mass. 28.
    November 18, 1907:
   Opinion by

Morrison, J.,

The policy of insurance in this case contained the following: “The German Insurance Company of Freeport, Illinois, in consideration of the stipulations herein named, and of seven and 50-100 dollars premium does insure H. E. Armstrong for the term of one year from the 26th day of October, 1903, at noon, to the 26th day of October, 1904, at noon, against all direct loss or damage by fire, except as hereinafter provided, to an amount not exceeding fifteen hundred dollars, to the following described property while located and contained as described herein, and not elsewhere, to wit: .... Loss, if any, first payable to the New Kensington Lumber Company, contractors, as their interest may appear.”

It is conceded that on October 26, 1903, when the insurance became effective, the insured property was owned by H. E. Armstrong, and the plaintiff’s interest therein was that of a contractor with a mechanic’s lien for work and materials furnished by it in the construction of a house. The amount of plaintiff’s claim was $1,279.62, with costs. On October 26, 1903, the insurance was effected through Logue & Brother, general agents of the defendant company, and it went into effect from noon of that day. These agents were informed that the lumber company was the contractor and builder of the insured house, and desired the insurance for its protection, and that H. E. Armstrong was the owner of the property. The policy was thereupon issued by the defendant company for $1,500 to H. E. Armstrong, as owner, insuring him against loss or damage by fire as therein expressed. To this policy there was attached a rider as follows: “Loss, if any, first payable to the New Kensington Lumber Company contractors as their interest may appear.” The lumber company paid the premiums, and the agents were informed that the insurance was effected to protect its interest. Armstrong did not appear before the agents, nor were any representations made as to him except that he was the owner of the property. It does not appear that he had any knowledge of the transaction on that day at least. One hour after the policy took effect Armstrong filed his petition in bankruptcy, and on the same day he was adjudged a bankrupt, and thereafter a trustee in bankruptcy was appointed for his estate. The lumber company, however, did not learn of the bankruptcy until a day or two thereafter. On May 10,1904, the insured house was totally destroyed by fire. On June 29,1904, the lumber company sent the insurance company proofs of loss, which proofs were joined in by Armstrong’s trustee in bankruptcy.

Upon the above state of facts the lumber company contends that the insurance contract was in fact between it and the insurance company, and that the present action can be maintained between the lumber company as plaintiff and the insurance company as defendant, notwithstanding the facts that the policy was made to Armstrong as owner, and that neither the defendant company nor its agents had notice or knowledge to the contrary, and that they did not know that Armstrong was a bankrupt, and was actively going into bankruptcy at the very time when the contract of insurance was made. It is conceded that the adjudication in bankruptcy by Armstrong was such a change of ownership of the insured property as would avoid the policy under its plain terms, in the absence of the rider, but the plaintiff contends that the insurance was taken solely for its benefit and that it can recover, notwithstanding the provision of the policy is a complete bar to the right of the person named therein as owner to recover. We cannot agree with this contention on the facts of the present case. The defendant company had the right to rely on the representation, which was embraced in the policy, that Armstrong was the sole owner of the property, and that he would not cause or permit any change to take place in the interest, title or possession of the subject of insurance.

At the trial there was a motion for a binding instruction in favor of the defendant. But this was denied and the jury rendered a verdict in favor of the plaintiff for the full amount of the policy. But on a proper motion for judgment non obstante veredicto the learned court entered judgment for the defendant. In our opinion this judgment is fully sustained by the reasons contained in the opinion filed therewith. We will therefore content ourselves by attempting to distinguish two of our own cases upon which the learned counsel for appellant rely.

The first of these is Assigned Estate of William Zehring, Appeal of Elizabeth Mease, 4 Pa. Superior Ct. 243. In that case the policy was issued nominally to William Zehring as the assured “Loss, if any, payable to Elizabeth Mease, widow, as her dower interest may appear.” Prom the finding of fact quoted by Judge Willard, who wrote the opinion of this court, and other statements of fact by him, it clearly appears that Mrs. Mease had an insurable interest in the property, and Zehring only joined in the application on the distinct agreement that he was to pay nothing, and that he was joining as a favor to Dr. Mease, who was acting for his mother. It further appears that the secretary of the insurance company who received the application and procured the policy for Mrs. Mease, well knew that the insurance was on her interest in the property. In such case the policy might well have been issued to her as owner, but the secretary decided that he should name Zehring as owner as above stated. Under this state of facts it would have been very unjust to have permitted the insurance company to defend on the ground that .Zehring could not recover. It was never intended by the insured nor by the company, acting through its secretary, to insure the property of Zehring, but to issue the policy on a well-defined insurable interest that Mrs. Mease had therein. Therefore it was clearly right to hold that Mrs. Mease was lawfully entitled to recover the loss under said policy. But in the present case there is not a particle of evidence that the agents representing the insurance company had any knowledge whatever of the financial condition of Armstrong, the owner of the property. Nor is there sufficient evidence that the defendant company undertook or agreed to insure the property as that of the plaintiff. On the contrary, it is clear that the policy was issued on the property of Armstrong, loss, if any, payable to the lumber company as its interest may appear. It is against common sense to suppose that the insurance company, with full knowledge of the conditions existing on October 26, 1903, would have issued the ■ policy in question. We therefore hold that the present case on its facts is not ruled by Zehring’s Estate. The other case is Carnes v. Farmers’ Fire Insurance Company, 20 Pa. Superior Ct. 634. In that case the plaintiffs had an insurable interest in the property, and they applied for insurance to protéct this interest, and the agent, with full knowledge of the facts, wrongfully or erroneously named one Mary L. Armstrong as owner, loss, if any, first payable to the plaintiffs. Therefore it was certainly correct to hold that the plaintiffs could sue and collect in their own names the insurance that was clearly intended to cover their insurable interest in the property. That case is in fine with Zehring’s Estate, supra.

The present policy was forfeited as to the owner named therein by his bankruptcy: Adams v. Insurance Company, 29 Maine, 292. And in our opinion the plaintiff lost its rights under the policy at the same time, which was long prior to the fire: Insurance Company v. Roberts, 31 Pa. 438.

We think the learned court below did not err in entering judgment for defendant non obstante veredicto.

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

Beaver, J.,

dissenting:

It is very clear that if this were an action founded upon the policy of insurance by the owner of the legal title there could be no recovery. The case, however, as it is presented, is not an action upon the policy of insurance. It is, as shown in the plaintiff’s statement, a contract between the plaintiff and the defendant.in and by which "the defendant agreed to issue such policy insuring plaintiff against all direct loss or damage by fire to an amount not exceeding $1,500, to the said house, plaintiff agreeing to pay a premium of seven arid 50-100 dollars to defendant for such policy,” the policy having been issued in pursuance of this contract. The action is brought not'by the owner of the legal title, but by.a mechanic’s lien creditor, who admittedly had an insurable interest, to recover under the agreement of the defendant that a policy insuring the interest which he had, should be issued to him, and the assurance that the policy issued protected its interest. As stated in the opinion of this court, the lumber company paid the premiums and the agents were inforiyied that the insurance was effected to protect its interest.” This was not true; as a matter of fact it did not protect its interest, because the policy was issued in the name of the owner of the legal title, and contained a clause that if there was a change of title the policy was to be void, and the owner of the legal title was declared bankrupt upon the very day the policy became effective. The plaintiff, therefore, under the ruling of this court never had any insurance for a single day.

To this extent, therefore, there was misrepresentation on the part of the defendant in the issuing of the policy, even admitting that nothing whatever was said upon the subject. So far as appears by the testimony, neither the plaintiff nor the defendant knew of the impending bankruptcy of the owner of the legal title. I assume that if under the facts as they appear in this case the plaintiff had made application to a court of equity before the bankruptcy of the owner of the legal title for reformation of the policy so as to conform to the contract which it had made with the insurance company, as he alleges, and as I think the proof is sufficient to warrant, it would undoubtedly have been reformed so as to conform to the contract, and to this doubtless the defendant itself would have assented. And so after the change of title a like application would have been accorded a like result. If this is true, and the contract would have been reformed before the fire I cannot see why equity ’ should not interfere to estop the defendant from setting up the defense which prevails here after the fire. The point at which I diverge from the court is that at which it is assumed that the 'policy of insurance is the contract between the parties and con- ’ struing it accordingly. As I view thé case the policy never was the contract: It was for a jury to say under the evidence • whether or not there was misrepresentation as to the effect of thé policy, or a mutual mistake, and if there was the defendant was estopped from setting up the change of title clause which was good against the holder of the legal title, but was not good against the plaintiff, although I admit it could have been invoked against it if the interest actually insured had been changed or transferred.

The defendant took the money of the plaintiff, and placed-it in its treasury, and still has it there under a contract, if the plaintiff’s statement of claim is correct, and if, as I believe, the facts would warrant an inference which a jury could draw therefrom, to insure his interest in this property with the assurance that the policy effected this result. But it did not do so notwithstanding its allegation to the contrary, not for a single day. To hold that the defendant can do this works unrighteousness. The law is sometimes compelled to do this in order to be consistent with itself, but never when in the orderly administration of justice, equity can open a door of escape. Believing that equity can and ought to open such a door in this case, I am compelled respectfully to dissent from the conclusion expressed in the judgment of the court.


author: Orlady, J.,

text:
    Crick’s Estate.

      Wills — Construction—Evidence—Surrounding circumstances.

    In construing a will all the surrounding circumstances of a testator, his family, the amount and character of his property, may and ought to be taken into consideration.
    A testator executed his will when he was about sixty-three years of age, an invalid in health, and after he had lived for many years alone in domestic confidence with his wife, who was three years his junior. They had no children, were mutually dependent upon each other and had united their savings. The title to the home in which they lived was in the wife’s name; that of another house and lot was in the husband’s name, and a third was in their joint names. In addition to these he owned interest bearing securities to the amount of several thousand dollars. With a scant knowledge of the technical use of words and legal phrases he made a will by which he provided first for the maintenance of his wife by giving to her the entire income of his estate with the right to draw on the principal if necessary. He further directed as follows: “ If my wife shall sell her house and lot in her lifetime, or her executor sell it after her death, whatever amount it may bring when sold, the same amount I want taken of the principal and set aside for my relations on my side of the house.” He then provided that the remainder should “ be equally divided between my wife and myself, each having the right to do with the half by bequest as they see fit.” The wife survived the testator, and died without having sold her house and lot. The orphans’ court ascertained the value of the wife’s house and lot, awarded an equal amount of testator’s funds to his relatives, and awarded the remainder equally between the estates of the testator and his wife. Held, that the'distribution was proper.
    Argued May 21, 1907.
    Appeal, No. 182, April T., 1907, by . .ay Twining, from decree of O. C. Venango Co., Nov. T., 1904, No. 22, sustaining exceptions to auditor’s first report and dismissing exceptions to second report, in Estate of David Crick, deceased.
    Before Rice, P. J., Porter, Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to report of Thomas McGough, Esq., auditor.
    Criswell, P. J., filed the following opinion:
    David Crick died November 2, 1893, testate, leaving to survive him no children, but a widow, Elizabeth Crick, and collateral relatives, and an estate, personal and real, amounting to something over $7,000. The real estate consisted of a house and lot in Oil City, sold by his administrator for $1,000. His wife, Elizabeth, also owned a house and lot in her own right, and still another house and lot in the city was owned by both, having been conveyed to them jointly. Elizabeth survived her husband, dying testate, 190 , and by virtue of such survivorship acquired title to the whole of the latter lot in fee.
    Apparently, as we gather from the crude language of the will, David Crick, the testator first mentioned, desired, after providing for the maintenance of his wife during life, that such property as he and his wife owned should, after her decease, be equally divided between his own and his wife’s collateral relatives. With this object in view he provided first for her maintenance by giving to her the entire income of his estate, with the right, in case it should be necessary, to draw on the principal. In order to effect such equal distribution of their joint property, he provides as follows, viz: “If my wife, Elizabeth Crick, shall sell her house and lot in Oil City, in her lifetime or her executor sell it after her death, whatever amount it may bring when sold, the same amount I want taken of the principle and set aside for my relations on my side of the house.” He then provides that the. balance, after all expenses of settling the estate are paid,' shall" be equally divided between his wife and himself. “Each having the right to do with the half by bequest as they see fit.” Then follows a disposition of “my estate” (evidently meaning thereby the portion not bequeathed to his wife or otherwise disposed of) among his collateral kindred.
    Before the auditor, David’s kindred and legatees and his wife’s differed as to their rights under these provisions of the will, David’s claiming that a sale of her lot, either by herself or her executor, was a condition precedent to her acquiring one-half of or any interest in the estate, except such as she acquired under the clause giving her the use of it for life, while the executrix of Elizabeth denied this contention and claimed the full one-half of the estate remaining at her death after deducting expenses and special bequests. The auditor adopted the latter view and reported a distribution accordingly. To this report the kindred and legatees of David have, through their counsel, filed' exceptions and thus a question is raised as to the proper construction of the will.
    It is elementary law that in the construction of wills the intent of the testator is to govern, and, except in cases of latent ambiguities, the intent is to.be gathered from the language of the testator as contained in the will, it being proper in all cases to take into consideration the family, character and amount of the estate of the testator. Each part of it is to be considered in connection with every other part and all are to be reconciled and given effect if possible.
    A consideration of this will as a whole, in our opinion, fairly discloses the intent indicated. It is disclosed by his express direction that the value of her lot, the proceeds of which when sold he naturally anticipated would go to her relatives, should be offset by setting aside an equal amount out of his estate for his relatives .on his side of the house, and by the division of the balance equally between himself and his wife. This latter provision, standing alone in so far as it relates to himself, is, of course, absurd, as a man cannot be his own legatee. This was, however, but the testator’s way of expressing his intent that one part of the estate was to be disposed of by himself, 'while the other was to go to and be disposed of by his wife.
    Having in view the purpose indicated, to effect an equal division of their joint property between his own and his wife’s kindred, is the contention of either of the parties to the controversy now before the court such as to so operate? One would deprive the wife’s kindred of all interest in the testator’s estate, while the other would give the wife’s kindred all of her estate and one-half of her husband’s. If an intent otherwise be manifest, as we have indicated, a result more nearly in harmony therewith should be reached.
    The point of divergence in the will is that relating to the sale or disposition of the wife’s house and lot. Adhering to the letter of this provision, it was a sale of the lot which was to affect the distribution. But, reviewing the will as a whole, was this the thought of the testator? Did it make any difference to him whether either his wife or her executor sold the property or she disposed of it by will? Why should the manner in which she should see proper to dispose of her own lot affect the distribution of his estate? Manifestly he was not concerned as to this, but what he had in mind was that an amount equal to the value of her lot when disposed of for the benefit of her relatives should be taken from the principal of his estate and set apart for his relatives in order that hers might not receive an undue portion of the estate and property which they both had. Being a layman, unskilled in the preparation of such papers and unfamiliar with the different methods of transferring estates, he appears to have assumed that necessarily her house and lot would have to be sold by her during her lifetime or by her executor after her death. But there were other methods of disposing of the property and she saw proper to resort to one of them. She disposed of it by will. Did her husband intend that if she resorted to this method no deduction should be made on account of its value from the amount of his estate for the benefit of his relatives, or that by her so doing her relatives should receive no part of his estate? Such conclusions are not tenable from any standpoint of reason. They ignore the prime intent of the testator and result, beyond any reasonable doubt, in a disposition of his estate never contemplated by him..
    The rule of construction of wills, when inapt words have been used to express the intention of the testator, is well stated by Thompson, J., in McKeehan v. Wilson, 53 Pa. 76: “ It is a cardinal rule in the construction of wills that the intention of the testator as developed by the will shall control. If this were not true, the paper would not be the will of the decedent. It sometimes happens, however, that through ignorance or the mistake or the testator or drawer of a-will words are omitted or inserted which have left unexpressed or wrongfully expressed, what clearly appears to have been the intention of the devisor from the whole tenor of the will, and which are necessary to carry it out. The rule in such cases is well settled that the courts will permit the will to be read as if .the words omitted were inserted and those wrongfully inserted were omitted, and in the place or places where they were intended to have been inserted or omitted.” There are numerous instances of the application of this rule where “and” has been read as “or,” “any,” as “all,” etc. The word “inherited,” having reference to land, has been construed to apply to lands devised or conveyed, while a presumption in favor of the technical use of technical words will always be sacrificed in favor of the general intent: DeKay v. Irving, 5 Den. 646.
    While the word “sell” was used by the testator in connection with his reference to the transfer of his wife’s house and lot it appears clear that what he intended to cover and include was such or whatever disposition should be made of the same, and that when disposed of an amount equal to the value thereof should be set apart out of his estate for his relatives, and as the word “sell” approximates the meaning of the words “dispose of, ” there would be no radical departure from the text by making the substitution. The word “sell” is defined by Blackstone as “a transmutation of property from one to another in consideration of some price or recompense in value,” while almost anything answers for a consideration, price or recompense in value.
    But it is said the clause under consideration begins with the word “if” and it implies a condition precedent. This, it may be conceded, is generally true, when it is not controlled by other words, but is not always true. Frequently it is used instead of “whether,” which is one of its meanings recognized by the authorities. Giving to it this signification and maldng the slight modification above indicated the sentence would read “Whether my wife Elizabeth shall dispose of her house and lot in Oil City in her lifetime or her executor dispose of it after her death whatever amount it may bring when disposed of, the same amount I want taken of the principel and set aside for my relations on my side of the house.” Assuming this to be a proper expression of the testator’s intent as we believe and conclude it is it would follow reasonably that the disposition of the lot which he contemplated was to. be one at its fair value. Assuredly he did not mean that his wife might sell or otherwise dispose of it for $1.00 or for nothing and that only a corresponding amount should be set aside from his estate for his relatives. Upon purely equitable grounds this position appears likewise to be sustainable. The orphans’ court is a court of equity. “Equity always seeks for the real intent under cover of whatever forms and appearances, and will give effect to such intent unless prevented by some positive and mandatory rule of law:” Pomeroy’s Eq. Jur. 378. “It will in no case permit, the veil of form to hide the true effect or intention of the transaction:” Eaton’s Equity, 81. “Equity will disregard names and penetrate disguises, to get at the substance underneath: ” Stockton v. Railroad Co., 50 N. J. Eq. 52. A familiar instance of the application of the rule is that of the common mortgage, which though in form an absolute conveyance, in case of default of payment, it is nevertheless held to be only a pledge or security.
    The legal representative of Elizabeth Crick stands on no better or different grounds as a claimant than would Elizabeth herself. Would equity permit her, with knowledge of the provision of the will, to disappoint her husband’s beneficiaries, by adopting another method of disposing of her property than that expressed in or contemplated by the will, for the purpose of augmenting her estate? The maxim that “he who comes into equity must come with clean hands,” would appear, at least, to forbid such reprehensible conduct. On the other hand, is it possible that the fact that she ignorantly or negligently devised her hpuse and lot instead of selling it should have the effect of depriving her kindred and beneficiaries of all interest in her husband’s estate?
    The conclusion therefore is reached that an amount equal to the value of Elizabeth Crick’s house and lot at the time of her decease should first be deducted from the amount of David’s estate available for distribution and the representative of Elizabeth’s estate should be awarded the one-half only of the balance, while the whole of the remaining part of it should be awarded to his remaining legatees. This necessitates a finding by the auditor as to the value of the house and lot at the time indicated, which can probably be done satisfactorily from the evidence heretofore taken or offered before the auditor, provided there be no legal objection thereto.
    Upon the case being referred back to the auditor he filed a second report in which he found the value of Mrs. Crick’s house to be $2,000. He deducted this from the balance for distribution, and distributed the remainder, one-half to the administratrix of Mrs. Crick, and the remainder to Mr. Crick’s legatees.
    Exceptions to the second report were dismissed.

      Errors assigned were in dismissing exceptions to auditor’s second report.

      H. J. Muse, with him R. F. Glenn, for appellant.

      J. D. Trax, with him Wm. M. Parker, for appellee.

      November 18, 1907:
   Opinion by

Orlady, J.,

In Postlethwaite’s Appeal, 68 Pa. 477, it was said: “It has been long and well settled, and indeed it is a principle so consonant to reason, that the only wonder is that it should ever have been questioned, that all the surrounding circumstances of a testator, his family, the amount and character of his property, may and ought to be taken into consideration in giving a construction to the provisions of his will:” Follweiler’s Appeal, 102 Pa. 581; McKeehan v. Wilson, 53 Pa. 74.

When David Crick executed his will he was about sixty-three years of age, an invalid in health and for many years had lived in domestic confidence with his wife, who was three years his junior. They had no children and were mutually dependent upon each other. They united their savings in accumulating the property involved in this contest. The title to the home in which they lived was in the wife’s name; that of another house and lot was in the husband’s name, and a third was in their joint names. In addition to these he owned interest bearing securities of the value of $5,600. With a scant knowledge of the technical use of words and legal phrases, he disposed of this property by a will written by himself. In considering the will thus prepared, despite his inapt use or misuse of words in some instances, it indicates as clearly as would be expected from a person so situated, that his estate should be distributed in the manner determined by the court below. The essential facts are not in dispute and, as said in Roberjot v. Mazurie, 14 S. & R. 42, “No other man’s will can guide us in the construction of this man’s will,” we feel that the result reached is as nearly the true one as we can make it. An extended discussion would not add to what has been submitted in the opinion of the court below in which the governing principles are rightly applied.

The decree is affirmed.


text:
    Western National Bank v. Cotton, Oil and Fibre Company, Appellant.

      Judgment — ■Affidavit of defense — Judgment by default — Opening judgment — Practice, C. P. — Rule of court.

    Where a rule of court provides that an affidavit of defense must be filed within fifteen days from the filing of a rule to file an affidavit of defense, and judgment is entered on the sixteenth day for want of an affidavit of defense, and later on the same day an affidavit of defense is filed, the judgment cannot be disturbed, and it will stand as entered “in due course of law.” Such a rule of court is valid.
    Argued Oct. 8, 1907.
    Appeal, No. 2, Oct. T., 1907, by defendant, from order of C. P. No. 5, Phila. Co., Sept. T., 1906, No. 5,036, discharging rule to strike off a judgment in case of Western National Bank v. The Cotton, Oil & Fibre Company.
    Before Rige, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Rule to strike off judgment.
    The rule was granted on the following affidavit:
    The Cotton, Oil and Fibre Company, through its general manager, J. S. Cochran, being duly sworn, deposes and says that the said company is the defendant in the above cause; that on November 27, 1906, copy of plaintiff’s statement was filed on defendant; that on or about nine o’clock on the morning of December 13, 1906, a few moments before defendant’s attorney arrived at the prothonotary’s office with defendant’s affidavit of defense, the plaintiff entered judgment in said cause; deponent further avers that he, nevertheless, did on December 13, 1906, file his affidavit of defense, a copy of which is attached hereto and made part hereof.
    Staake, P. J., filed the following opinion:
    The rule to strike off the judgment in this case is discharged on the authority of: North v. Yorke, 174 Pa. 349; Hall v. West Chester Pub. Co., 180 Pa. 561; Newbold v. Pennock, 154 Pa. 591; Lumber Co. v. Home Ins. Co., 167 Pa. 231.

      The court can only consider the regularity of the judgment, and, in the absence’ of any defect apparent on the face of the record, it cannot disturb the judgment regularly entered according to the provisions of the law and the rules of the court.
    The regularity of a judgment entered by a prothonotary, by order of the court, in compliance with the law and the general rules of the court, cannot be questioned. The prothonotary had authority to enter judgment in this case, in default of an affidavit of defense, on the sixteenth day after the service upon defendant of summons, statement, and rule to file affidavit of defense.
    As was said by the learned president judge of the court of common pleas of Monroe county, whose judgment was affirmed in Lumber Co. v. Home Ins. Co., 167 Pa. 231, “Taking the record as it is, we see nothing to warrant our interference with the judgment.”
    The authority for entering the judgment, under.the provisions of the Act of April 22, 1889, P. L. 41, is that of the court, whose judicial power is registered by the entry of the judgment by the prothonotary, in deference to the direction of the court, by its rule or standing order, as a judgment of non pros, for want of a plea, or for want of an appearance is entered. When a judgment is so entered by the prothonotary, it has the same effect as if moved for in open court. In the cases cited by defendant’s counsel as to the entry of judgment for want of a sufficient affidavit of defense, and for want of an affidavit of defense, there is not the “serious distinction” he asserts. In both cases it is the action of the court; in the one case, upon motion made in open court and after a hearing, and in the other, by the direction of the court in accordance with its rules or standing order. The act of the prothonotary' is connected with and dependent upon the authority and direction of the court, and is not by virtue of any official right or authority independent of such authority and direction of the court.
    We cannot find that the Act of April 22, 1889, P. L. 41, is unconstitutional for the reasons averred by the defendant’s counsel. The prothonotary exercises no “judicial power,” and his entry of judgment for the court and undér. its order is not the exercise of a “judicial function,” but is a mere clerical duty. The “relief” granted is by the court and not by the prothonotary. The evidence that the relief has been granted by the court is the entry of its decree by the prothonotary.
    November 18, 1907:
    On the authority of Banking Co. v. Restein, 214 Pa. 30, and Bradshaw Electro Sanitary Odor Co. v. Bradshaw, 27 Pa. Superior Ct. 196:
    “The validity of the judgment entered cannot be affected by the subsequent filing of the affidavit even upon the same day. If the rule was one to show cause why the judgment should not be opened, etc., there might be room for the possible exercise of some discretion by the court, if grounds for an appeal to such discretion were laid. This, however, was not a rule to open, but to strike off a judgment regularly entered in exact accordance with the legal rights of the plaintiff, and the legal requirements of our procedure Act of May 25, 1887, P. L. 271, and the act of April 22,1889.”
    The judgment in this case was entered “in due course of law” and cannot be disturbed.

      Error assigned was the order of the court.

      C. Oscar Beasley, for appellant.

      Robert W. Davis and Harris S. Sparhawlc, for appellees.
   Per Curiam,

This was an action of assumpsit upon a promissory note. On the sixteenth day after service of a copy of the statement and rule to file affidavit of defense, the plaintiff caused judgment to be entered in the prothonotary’s office for want of an affidavit of defense. Later in the day the defendant filed an affidavit of defense, and then upon motion and affidavit obtained a rule to show cause why the judgment should not be struck off. After hearing the court discharged the rule, and from that order this appeal was taken. In view of the clear and satisfactory opinion filed by the learned judge below, extended discussion by us of the questions sought to be raised by appellant’s counsel is unnecessary.

At the expiration of the fifteenth day the plaintiff had a right to judgment, and upon the sixteenth day, while the defendant was still actually in default, he caused judgment to be entered. The fact that it was entered before the affidavit of defense was filed appears by the defendant’s affidavit in support of the motion to strike off, and is undisputed. It is only by resort to the legal fiction that the affidavit of defense was on file every minute of the sixteenth day, or by holding that the court could not inquire into the question whether it was filed before or after the entry of judgment, that a plausible argument can be made against the regularity and validity of the judgment. It is true that in Duncan v. Bell, 28 Pa. 516, it was held that, even where the rule of court provided that the plaintiff should be entitled to judgment on a certain day unless an affidavit of defense should be filed before judgment should be asked for, the affidavit was in time if filed on that day although after judgment had been asked for and entered. But in the very recent case of Bordentown Banking Co. v. Restein, 214 Pa. 30, Chief Justice Mitchell, speaking of this ruling, says: “This, however, has not been the general practice under which the courts have usually considered the question of fractions of a day, so far as to inquire into the actual priority of the filing of the affidavit and the entry of judgment.” This precise question arose in Bradshaw Electro Sanitary Odor Co. v. Bradshaw, 27 Pa. Superior Ct. 196, and it was there held, after a full consideration and upon a state of facts precisely similar to that which is presented here, that it was competent to show that the judgment was entered before the affidavit of defense was filed, and that if so entered its validity could not be affected by the subsequent fifing of the affidavit, even upon the same day.

As to the validity of the rule of court which permits judgment for want of an affidavit of defense to be entered in the prothonotary’s office we concur in the views expressed by the learned judge below. We refer further to the recent case of Johnson v. Royal Insurance Co. of Liverpool, 218 Pa. 423, where, upon a consideration of the acts of 1887 and 1889, with reference to a rule of court permitting judgment by default to be entered for want of a plea, the court said: "There can be no doubt about the authority of the common pleas to make the rule under which this judgment was entered. It is expressly conferred by the act of 1889, and the rule is strictly in accordance with the act.” The case is also important and in line with earlier cases as showing the distinction between a motion to strike off a judgment regularly entered and a motion to open.

The order is affirmed at the costs of the appellant.


text:
    Quigley v. Traders’ Mutual Fire Insurance Company of Philadelphia, Appellant.

      Appeals — Failure to print statement of claim — Failure to print evidence —Paper-books—Quashing appeal.

    A failure by an appellant to print the statement of claim in his paper-book is a noncompliance with the rule of the Superior Court.
    On an appeal in an action against an insurance company to recover for a fire loss, where the transcript of the evidence shows that the policy and the proofs of loss were produced and offered in evidence, and it also appears that neither the policy nor the proofs Of loss are printed in the appellant’s paper-book, and that these papers are essential to a proper determination of the case, the appellate court will not send the case back for a retrial, but will quash the appeal of the insurance company.
    Argued Oct. 8, 1907.
    Appeal, No. 249, Oct. T., 1906, by defendant, from judgment of C. P. No. 2, Phila. Co., June T., 1905, No. 4,233, on verdict for plaintiffs in case of Phillip F. Quigley et al., trading as Quigley & Gehringer, v. The Traders’ Mutual Fire Insurance Company of Philadelphia.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Appeal quashed.
    Assumpsit for a fire loss. Before Wiltbank, J.

      Error assigned was in directing judgment for plaintiffs;

      November 18, 1907:

      William C. Mdyne, for appellants.
    No printed brief for appellee.
   Per Curiam,

The plaintiffs' statement of claim is not printed in the appellant’s paper-book, as rule XXIV of this court requires. It was of particular importance that the rule should be complied with in this case because without having the statement before us we cannot determine with absolute certainty whether the plaintiffs’ claim was upon a policy of fire insurance, as is stated in the appellant’s history of the case, or upon an agreement of settlement between the plaintiffs and the company acting through its secretary, as one portion of the judge’s charge gives some ground for inferring.

But passing this objection, and assuming that the action was upon a policy of insurance, we encounter a more serious difficulty. The appellant’s counsel argues that binding instructions ought to have been given for the defendant because there is a provision in the policy which required the insured to furnish an itemized statement of the cash value of the goods claimed to have been injured by the alleged fire, and the proofs of loss were defective in this particular. Obviously, therefore, it was absolutely essential to the determination of that question that the policy and the proofs of loss should be before us. The transcript of the evidence sent up with the record shows that the policy was formally offered in evidence and identified by its number, date and other particulars, and that the proofs of loss were produced, or a copy of them, and practically treated as in evidence. Neither of these papers is printed in the appellant’s paper-book, and, as its counsel says, “there appears no way to demonstrate the provisions of the policy sued upon, nor plaintiffs’ compliance therewith,” without them. But, instead of holding, as he argues, that there is no other alternative but to send the case back for retrial because they were not marked as exhibits, it seems plain that the appeal should be quashed for noncompliance with the rule which requires the appellant to print the evidence. \

The appeal is quashed.


author: Porter, J.,

text:
    Pennsylvania Trust Company, Appellant, v. Jones.

      Taxation — Tax lien — Cities of the third class — Acts of May 4, 1889, P. L. 79, May 23, 1889, P. L. 277, May 23, 1895, P. L. 118, and June 4, 1897, P. L. 122.
    Under the Act of May 4, 1889, P. L. 79,. as amended by the Act of June 4, 1897, P. L. 122, the general levy of taxes by a city of the third class at the time the taxes are assessed, does not become a perpetual lien upon the real estate assessed, without regard to whether such taxes were ever entered of record’ in the office of the prothonotary of the county, or not.
    The Acts of May 4, 1889, P. L. 79, and May 23, 1889, P. L. 277, are not in conflict; the latter act requires that unpaid taxes shall be registered, and the former provides that if they are not so registered, they shall cease to be a lien upon the land. The lien is the creature of statute, and if the directions of the statute have not been complied with, the right to the lien does not exist.
    Argued Feb. 28, 1907.
    Appeal, No. 35, Jan. T., 1907, by plaintiff, from order of C. P., Lackawanna Co;, Sept. T., 1903, No. 1,237, making absolute rule to pay over money in case of The Pennsylvania Company to use v. Meredith L. Jones et al.
    Before Rice, P. J., Porter, Henderson, Orlady, Head and Beaver, JJ.
    Reversed.
    Rule to pay over a fund raised by a sheriff’s sale of real estate. Before Edwards, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was the order of the court.

      W. M. Bunnell, with him Charles E. Daniels, for appellant.
    —Under the universal interpretation of the court, the Act of May 23, 1895, P. L. 118, created no additional hen, but only provides a means for divestiture: Brooke v. Kaufman,, 6 Pa. Dist. Rep. 513.
    ■ The provisions of the act of May 23, 18*89, relative to the filing of tax liens, is mandatory: Carbaugh v. Sanders, 13 Pa. Superior Ct. 361; Reading v. Krause, 167 Pa. 23; Norwegian St., 81 Pa. 349; Houlette’s Case, 33 Pitts. Leg. Journ. 25.
    November 18, 1907:
    Taxes can be paid out of the proceeds of land sold only where they are a lien upon the land: Taylor v. Bowling; Theurer’s Appeal, 40 Weekly Notes of Cases, 493; City of Scranton v. Scanlon, 7 Lacka. Legal News, 157; Hamill v. Andresak, 13 Pa. Dist. Rep. 316.

      David J. Davis, city solicitor, and II. R. Van Deusen, assistant city solicitor, for appellee.
    — The act of May 23, 1889, applies only to cities of the third class, while the act of May 4, 1889, applies to all municipal corporations in the state. While the former is not special legislation as to offend against the constitution, it is particular as compared with the latter. Both can therefore be sustained: Malloy v. Reinhard, 115 Pa. 25.
    The act of May 23, 1889, was passed in order to provide a comprehensive code for the government of cities of the third class, and for the regulation of their municipal affairs: Hand v. Fellows, 148 Pa. 456; Smith v. Meadow Brook Brewing Co., 3 Lacka. Jurist, 145.
   Opinion by

Porter, J.,

■ The defendants executed and delivered to the Pennsylvania Trust Company-two mortgages which were duly recorded on June 22, 1899, creating a lien upon real estate in the city of Scranton. The property was, on March 31, 1904, sold under proceedings upon these mortgages, and the questions presented by this record arise out of the distribution of the proceeds of that sheriff’s sale. The mortgages held by the plaintiff were, at the time they were recorded, a first lien, so far as shown by the record. The city of Scranton presented a claim of $400.02 for taxes assessed in the year 1895, and a claim of $353.06 for taxes assessed in the year 1899. The taxes assessed in the year 1895 had never been entered of record in the office of the prothonotary of the county; and the taxes for the year 1899 were not entered of record in said office until January 3, 1903. The taxes were the general levies by the city, for the years respectively, and the city was at the time they were made a city of the third class. The court below awarded to the city the amount of the taxes claimed and the plaintiff, the mortgagee, appeals. The only question presented is whether the general levy of taxes by a city of the third class, at the time the taxes in question were assessed, became a perpetual hen upon the real estate assessed, without regard to whether such taxes were ever entered of record in the office of the prothonotary of the county, or not.

The learned judge of the court below was of opinion that the question was to be determined solely under the provisions of the eleventh and twelfth sections of article XV of the Act of May 23, 1889, P. L. 277, providing for the government of cities of the third class, as amended by the Act of May 23,1895, P. L. 118; that the provisions of the eleventh section of that statute which require the registration of taxes in the office of the prothonotary of the proper county are merely directory, and that the taxes claimed by the city had, as soon as assessed, become a hen upon the property which would continue without limitation and without further action by the municipal authorities. We are convinced, after consideration of the various statutes bearing upon the question, that the conclusion of the court below was erroneous.

The Act of May 4,1889, P. L. 79, entitled; “An act limiting the duration of the hen of county, city, borough, township and school taxes, and municipal improvement -claims,” provides that no such taxes, “levied or assessed, shall remain a hen on real estate for a longer period than two years from the time of such levy or assessment, unless the same be entered of record in the prothonotary’s office of the proper county in which such real estate is situate.” The eleventh section of the Act of May 23, 1889, P. L. 277, enacts, as to unpaid city taxes, that “It shah be the duty of the city treasurer .... to certify the said schedules and taxes, or a copy thereof to the city solicitor, who shah cause the said taxes, with the penalties thereon, to be registered in the name of the city and against the person or persons charged in the duplicate with the same, in the office of the prothonotary of the proper county, who shall keep a separate book for that purpose to be called the city lien-docket; and all taxes assessed upon real estate shall be and continue to be liens thereon from the date of the levy thereof until paid;” and the twelfth section of said act contains a provision that the prothonotary shall be allowed a fee for each tax so registered, and that: “he shall also make searches and furnish transcripts or extracts from the register of taxes aforesaid, for which he shall be allowed the usual fees, to be paid by the party applying for the same.” These statutes were enacted at the same session of the legislature and should receive a construction, if possible, which will give effect to each. “Each is supposed to speak the mind of the same legislature, and the words used in each should be qualified and restricted, if necessary, in their construction and effect, so as to give validity and effect to every other act passed at the same session:” White v. City of Meadville, 177 Pa. 643. The provisions of the eleventh and twelfth sections of the act of May 23, 1889, do not merely invest the officers of a municipality with a discretion as to the registration of taxes which remain unpaid; they impose positive duties not only upon the officers of the city, but upon the prothonotary of the county. The provision that the prothonotary shall make searches and furnish transcripts from the register of taxes clearly indicates that it was the legislative intention that the register of taxes in the office of the prothonotary, “to be called the city lien-docket,” should be a public record which would afford notice to all parties of the existence of a lien for the taxes unpaid. The act of May 23, 1889, does not, it is true, fix any period within which the unpaid taxes must be registered, but the imposition of the positive duty to register is contained in the same sentence in immediate connection with the grant of a right of lien for the taxes while they remain unpaid. The Acts of May 4, 1889, P. L. 79, and May 23, 1889,-P. L. 277, are. not in conflict; the latter act requires that unpaid taxes shall be registered and the former provides that if they are not so registered within two years they shall cease to be a hen upon the land. The lien is the creature of statute and if the directions of the statute have not been complied with the right to the lien does not exist: Reading City v. Krause’s Estate, 167 Pa. 23. The effect of the provision of the act of May 23, 1889, that the taxes shall continue to be hens upon real estate from the date of the levy thereof until paid, is to make such taxes a first hen; they must be first paid qut of the proceeds of any sale if such proceeds are sufficient to pay them and, if the proceeds of the sale are not sufficient to pay them, they continue to be a lien upon the land. The act of May 23, 1889, required the taxes in question to be registered in the office of the prothonotary and the act of May 4, 1889, limited the time within which they must be registered and regulated the proceedings which must be had subsequently to registration in the courts of the county, in order to continue the life of the lien. This being the effect of the legislation, it follows that the city had lost its lien for the taxes, for they were not entered of record in the office of the prothonotary within the period limited by the act of May 4, 1889, as amended by the Act of June 4,1897, P. L. 122.

The order of the court'below is reversed and the record is remitted with direction to make distribution in accordance with the foregoing opinion.