text:
    Hunter v. Hunter, Appellant.

      Evidence — Cross-examination—Ejectment.
    In an action of ejectment, where the issue is the location of an "old coal bank” mentioned in a will, and the plaintiff calls a witness who testifies as to his knowledge of the land, and the location of an old coal bank, such witness may be cross-examined as to whether there was not another coal bank on the land at the time the will was made.

      Ejectment — Will—Extrinsic evidence — Parol evidence.

    In an action of ejectment where the issue turns on the location of an “old coal bank in the flat," mentioned in a will, and the testimony shows uncertainty as to what was designated as a coal bank, the plaintiff may be permitted to prove that testator always called certain depressions coal holes, while he always referred to a particular depression, further away and on sloping ground, as the_qld_coaTbajik.
    The general rule is, that parol evidence is admissible only to explain latent ambiguities or to apply provisions of a will to the subject or person intended, where the description is defective, uncertain, or too general to be understood specifically. When the process of identification of the subject-matter of the devise shows the existence of a subject which fully satisfies the terms of such devise, the object of that process, which is simply to apply a direction that would otherwise remain inoperative, is accomplished, no uncertainty is left to be cleared away, and it is not competent to show by further parol evidence that the testator actually intended to include something which is by the terms of his will excluded.
    There is no latent ambiguity in an instrument shown by extrinsic evidence, unless that evidence establishes that the description contained in the instrument is equally applicable to two distinct locations.

      Wills — Ambiguity—Declarations of testator — Description of land— Extrinsic evidence.

    Testator by his will directed as follows: “I will and bequeath unto my nephew J, all that portion of my farm lying west of the road, running through my farm from south to north, except that portion which lies along the Brush Run, all south of the old coal bank in the flat. I will and bequeath unto my nephew W, all that portion of my farm lyling east of the road before mentioned, together with portion lying south of the old coal bank above mentioned.” In an action of ejectment between the parties claiming under the will, a dispute arose as to the- location of the old coal bank. The plaintiff contended that the coal bank was on a slope while the defendant contended that the bank referred to was a coal bank in the flat. Held, that it was reversible error to permit the plaintiff to prove by declarations of the testator, that the line which he intended ran to a coal bank on the hillside.
    Oral declarations of the testator as to the disposition which he had made of his property cannot be offered in evidence to vary the disposition of that property which he had made by his written will.
    Where a subject exists which satisfies the terms of the will, and to which they are perfectly applicable, there is no latent ambiguity. Evidence is only admitted dehors the will, from necessity, to explain that which would otherwise have had no operation.
    Argued April 20, 1908.
    Appeal, No. 53, April T., 1908, by defendant, from judgment of C. P. Westmoreland Co., Aug. T., 1904, No. 688, on verdict for plaintiff in case of Wiliiam A. Hunter v. Mary A. Hunter.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Ejectment for land in Mt. Pleasant Township. Before Doty, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff. Defendant appealed.

      Errors assigned were various rulings on evidence and instructions, particularly referred to in the opinion of the Superior Court.

      John E. Kunkle, with him Edward E. Robbins, for appellant,
    cited as to oral testimony as to the declarations of John Galloway: Wusthoff v. Dracourt, 3 Watts, 240; Best v. Hammond, 55 Pa. 409; Iddings v. Iddings, 7 S. & R. 111; Myers v. Myers, 16 Pa. Superior Ct. 511; Thompson v. Kaufman, 9 Pa. Superior Ct. 305; Willard’s Est., 68 Pa. 327.

      James S. Beacon, with him David L. Newill and Cecil E. Heller, for appellee,
    cited: Vernor v. Henry, 3 Watts, 385; McAfee v. Magee, 4 Penny. 94; Brownfield v. Brownfield, 12 Pa. 136; Coleman v. Eberly, 76 Pa. 197.
    October 12, 1908:
   Opinion by

Porter, J.,

The plaintiff and the defendant in this action of ejectment both claimed title under the will of John Galloway. The devises in said will which have any bearing on this controversy, being in the following words, viz.: “I will and bequeath unto my nephew, James Hunter, all that portion of my farm lying west of the road, running through my farm from south to north, except that portion which lies along the Brush Run, all south'of the old coal bank in the flat. I will and bequeath unto my nephew, William Hunter, all that portion of my farm lying east of the road before mentioned, together with that portion lying south of the old coal bank above mentioned.” Mary A. Hunter, the appellant, has succeeded to the title which passed to James Hunter, under said will. The plaintiff recovered a judgment in the court below and the defendant appeals.

The land in dispute lies west of the road mentioned in the will and the question turned at the trial upon the location of the “old coal bank in the flat.” The plaintiff contended that the coal bank referred to was located at a slight depression, or bench in the hillside, several hundred feet north of the line where the land began to rise above the strictly flat or level land near Brush Run, and that there was no coal bank in the flat land near the run. The appellant contends, and produced evidence which she asserts established, that there was, at the time the will was executed and, also, when it went into effect, a coal bank in the flat. There was no ambiguity in the will, the doubt, if any arises, is produced by extrinsic evidence, in applying the will to the subject-matter. The plaintiff" having offered the will in evidence, called as a witness John Crise and stated a purpose “to prove by'this witness the location of the old coal bank mentioned in this will.” The first material question asked of this witness, by the plaintiff, was whether he was familiar with the John Galloway farm, and the answer was in the affirmative. The plaintiff then proceeded to ask the witness question after question, as to how long he had lived on the farm and upon what parts of it he had worked, and then proceeded to interrogate him as to the location of the old coal bank. The witness testified that there was a depression in the ground where they said there was an old coal bank, but that he had never seen down into the coal bank, nor seen it open, that there was slack coal lying around there, .where he presumed they had taken coal out, and that this depression was located 400 or 500 feet north of the present line fence between the plaintiff and the defendant. The witness was asked by the defendant as to the lay of the land from this slack coal, at the depression to which he referred, south to the fence, and replied: “Well, it lays flat there, a little bit rolling from the depression down to the line of the fence.” The defendant proposed to ask this witness, on cross-examination, whether there was not another coal bank in the flat ground along Brush Run, from which coal was actually mined at the time he was on the farm and at the time the will was made, for the purpose of testing his knowledge of the coal banks on this farm. The plaintiff objected to this question, as not cross-examination, the objection was sustained, with an exception to the defendant. The witness having testified, under examination by the plaintiff, as f to his familiarity with the farm and the location of the old coal bank upon it, the defendant had a right to ask him any question, which directly tended to test the truth of his statement that he was familiar with the farm. In view of the declared purpose of the plaintiff, to prove by this witness the location of the old coal bank mentioned in the. will, we are of opinion that the defendant should have been permitted, in cross-examining this witness, to ask him whether there was a coal bank in the; flat, and nearer to Brush Run than the depression to which he had testified. The first specification of error is sustained.

The article of agreement between William A. Hunter and Robert S. Jamison, and the deed of Hunter to William Thaw, did not contain anything which could, by reasonable implication, be held to be an admission of title in James Hunter, or those claiming under him, to the land in dispute, and the second, third and eighth specifications of error are dismissed.

The plaintiff having produced evidence tending to show that the old coal bank was located on the sloping land, rested. The defendant produced evidence which would have warranted a finding that at the time the will was executed and at the time it went into effect there was one, possibly more than one, opening in the flat land from which coal had been and was being mined. The plaintiff in rebuttal, then produced evidence tending to establish that the coal which had been taken from the flat land had been obtained by merely stripping off the small quantity of earth lying over the coal on this level land and then removing small quantities of coal, that this had been done in several places; that these workings were mere temporary expedients for obtaining small amounts of coal, and that none of these workings were of such a character that they could be called a bank. If there was actually a coal bank in the flat land along Brush Pam in existence at the time the will was executed, • that fact would fix the line in controversy in this case, and the plaintiff could take nothing north of it; the conflicting evidence raised no doubt as to the intention of the testator, that is fixed by the words of his will, but the doubt, created by extrinsic evidence, is as to the location of the old coal mine in the flat. Whether there was a coal mine in the flat, and the location thereof, must be determined by the jury. Whether the depressions, now filled with water, in the flat land near Brush Run had resulted from the opening and regular operation of a coal bank or mine, or from mere strippings of a slight amount of earth immediately above the coal and digging down into the stratum for the purpose of obtaining a small quantity for mere present use, without any intention of making a permanent mine, removing the stratum of coal and supporting the superincumbent earth, was a question'of fact, concerning which a substantial doubt had been raised. The character of these depressions in the flat having been rendered uncertain by the evidence, it was competent to show how the testator had regarded and dealt with them. This not for the purpose, however, of changing or modifying the language which he employed in disposing of his property. This was the condition of the evidence when the plaintiff proposed to prove that the testator had always called, the depressions ' near Brush Run, “coal holes” and had always referred to the depression on the sloping ground farther from the run, as the old coal bank. We are of opinion that this testimony was admissible for the purpose of showing the names by which the testator had always designated physical objects upon his land, the true nature of such physical objects and the names by which they could properly be designated having already, by the evidence, been shown to be uncertain. The fourth and fifth specifications of error are dismissed. This evidence being admitted it was proper for the court to carefully instruct the jury as to the nature and purpose of it. The general rule is, that parole evidence is admissible only to explain latent ambiguities or to apply provisions of a will to the subject or person intended, where the description is defective, uncertain, or too general to be understood specifically. When the process of identification of the subject-matter of the devise shows the existence of a subject which fully satisfies the terms of such devise, the object of that process, which is simply to apply a direction that would otherwise remain inoperative, is accomplished, no uncertainty is left to be cleared away, and it is not competent to show by further parole evidence that the testator actually intended to' include something which is by the terms of his will excluded : Best v. Hammond, 55 Pa. 409; Root’s Estate, 187 Pa. 118; Thompson v. Kaufman, 9 Pa. Superior Ct. 305; Smith v. Metzger, 32 Pa. Superior Ct. 596. There is no latent ambiguity in an instrument shown by extrinsic evidence, unless that evidence establishes that the description contained in the instrument is equally applicable to two distinct locations: Henry v. Huff, 143 Pa. 548; Fuller v. Weaver, 175 Pa. 182; Hughes v. The Westmoreland Coal Co., 104 Pa. 207. If there was an “old coal mine in the flat,” or level land along Brush Run, it answers the description contained in the will and determines the rights of the parties to this controversy.

The plaintiff offered to prove by the witness Hitchman that the testator had pointed out to the witness the old coal bank and told the witness that that was the old coal bank to which1 he had run • the line of division between the part of the farm which he had given to his nephew James G. Hunter and the part he had given to his nephew William A. Hunter; “for the purpose of showing what John Galloway intended and meant by the division of the farm between the two devisees by the description in the will.” This testimony was admitted by the court below under an exception to the defendant, and is the subject of the sixth specification of error. The witness testified that the testator had told him that “he had divided the farm between his nephews leading right from the little swamp oak up past the old coal bank,” and that the old coal bank was located “across the bottom from the road, across the bottom pretty near at the foot of the hill.” The seventh specification of error raises the same question, and under the exception upon which this specification is based the plaintiff was permitted to J introduce evidence of an oral declaration of the testator made | to Dr. Fulton, as to the manner in which he had divided his I farm between James G. and William A. Hunter. Dr. Fulton testified that the testator said to him, “I start my line and my line passes through the coal bank just a little beyond that tree. Then it passes straight across, to a tree at the road. . . . James was to have the side with the building on and William was to have the other side. William was to have up to that line from that coal bank.” The coal bank referred to was the coal bank on the side of the hill. Dr. Fulton also testified that he called the testator’s attention to the fact that coal had also been taken out down in the hollow. The question squarely raised by these specifications of error is, can the oral declara- ¡ tions of a testator, as to the disposition which he has made of his property, be offered in evidence to vary the disposition of ' that property which he has made by his written will? “ In construing a will, the object of the court is to ascertain, not the intention simply, but the expressed intention7 of the testator, i. e., the intention which the will itself, either expressly or by implication, declares, or (which is the same thing) the meaning of the words, the meaning, that is, which the words of the will, properly interpreted, convey:” Hawkins on Wills, p. 1. The question in expounding a will is not what the testator meant, but what is the meaning of his words. The rule of law, therefore, is, that the writing is not to be altered or explained by evidence aliunde: Iddings v. Iddings, 7 S. & R. 111; Asay v. Hoover, 5 Pa. 21; Bruckman’s Estate, 195 Pa. 363. When the subject-matter of the devise contained in the will of John Galloway came to be ascertained there was, under the existing conditions of the testator’s property, but one question to be determined: the location of the old coal bank in the fiat. If there was a coal bank in the flat, the words which the testator had set down in his will, there fixed the location of the line between the lands of James Hunter and William Hunter. If, on the other hand, there was no coal bank in the flat, then the description could only apply to the coal bank in the side of the hill. It was not competent to show by declarations of the testator made at the execution of his will, or subsequently, that he intended the devise to include something that was excluded by the terms of the will as executed. “The modern doctrine is, that where a subject exists which satisfies the terms of the will, and to which they are perfectly applicable, there is no latent ambiguity. Evidence is only admitted dehors the will, from necessity, to explain that which would otherwise have had no operation.” This language was used by Justice Rogers in Wusthoff v. Dracourt, 3 Watts, 240, decided in 1834, and has been recognized as authority to the present time. The testimony, admitted against the objection of the plaintiff, described a different line from that in the will. It was only because it did, that it was offered. The very difference, however, shows the error of the admission. The testator’s line, represented by the will, gives to William Hunter all the land south of the old coal bank in the flat. The line proposed to be established by- the parole evidence, as the line intended by the testator, ran from a tree up to the coal bank on the hillside. Thus to give effect to the testimony was to change the will of the testator, and make his oral declarations his will, instead of what he had executed and published according to the forms of law, as his will. That this! testimony ought not to have been admitted is clearly estab-l lished by authority: Best v. Hammond, 55 Pa. 409; Apple v. Byers, 98 Pa. 479; Willard’s Appeal, 68 Pa. 327; Hancock’s Appeal, 112 Pa. 532; Woelpper’s Appeal, 126 Pa. 526; Myers v. Myers, 16 Pa. Superior Ct. 511. The sixth and seventh specifications of error are sustained.

The second and third points submitted on behalf of the defendant, while they recited certain facts, withdrew from the consideration of the jury a question of fact which under the evidence was disputed, namely, was there an old coal bank in the flat, or level land? These points asked for binding instructions in favor of the defendant, as did also the sixth point. The question of fact was for the jury and the points were properly refused. The tenth, eleventh and twelfth specifications of error are dismissed.

The judgment is reversed with a new venire.


source: Caselaw Access Project

author: Porter, J.,

license: Public Domain

text:
    Kelly’s Estate.

      Executors and administrators — Settlement of account — Distribution— Laches.

    The only effect of the settlement of an administration account in the orphans’ court is to show the balance of assets in the administrator’s hands after the payment of debts and charges, and can have no bearing upon the amount due to legatees, or to repel the presumption of the payment of a legacy which arises from lapse of time. The distribution of the estate of a decedent is not required to await the settlement of the final administration account.
    As long as the relation of trustee and cestui que trust is acknowledged to exist between the parties, and the trust is continued, lapse of time can substitute no bar to an account or other proper relief for the cestui que trust. But when this relation is no longer admitted to exist, or time and long acquiescence have obscured the nature and character of the trust, or the acts of the parties or other circumstances give rise to presumptions unfavorable to its continuance; in all such cases a court of equity will refuse relief upon the ground of lapse of time and its inability to do complete justice.
    Where there has been a distinct repudiation by the trustee of even a direct trust, and knowledge of the repudiation has been brought home to the cestui que trust, the case comes within the ordinary rules of limitation and laches. Laches will in equity bar a suitor of his remedy as effectually as the statute of limitations, and for the same reason his own inaction raising the identical presumption which the law raises, one from a mere lapse of time.
    At the time of the death of a testator, a legatee mentioned in the testator’s will had not been heard of for many years. The executor filed an account which was confirmed absolutely by the court. Three years thereafter, the legatee being still absent, the orphans’ court made a decree distributing the amount of the legacy, and the administratrix c. t. a. made actual distribution thereof. About three years after the distribution, the legatee, then a man of twenty-five or twenty-six years of age, returned, learned of the legacy and the distribution thereof, but he did nothing, and shortly afterwards disappeared, and remained away for a period of twelve years. He then returned, and filed a petition for citation against the administratrix. Held, that the legatee by reason of his laches was barred from any recovery on account of the legacy.
    Argued May 12, 1908.
    Appeal, No. 220, April T., 1907, by James E. Kelly, from decree of O. C. Butler Co., dismissing petition for citation in Estate of Abner Kelly, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Petition for citation.
    The facts are stated in the opinion of the Superior Court.
    The court dismissed the petition.

      Error assigned was decree dismissing the petition.

      W. D. Brandon, for appellant.
    Being a judicial decree of the same order and nature as a judgment at law, a decree of the orphans’ court is entitled to the same respect, is of equal vitality and should not be defeated or swept aside by defenses inapplicable to a judgment at common law: Burd’s Exrs. v. McGregor, 2 Grant, 353; DeHaven v. Bartholomew, 57 Pa. 126; Com. v. Moltz, 10 Pa. 527; Com. v. Snyder, 62 Pa. 153.

      S. F. Bowser, with him A. L. Bowser, for appellee.
    As between the executor and the creditors of an estate no trust exists of that peculiar kind that is within the exclusive control of a court of equity: York’s Appeal, 110 Pa. 69.
    If a party has a remedy at law, and instead of bringing his action, lies by, and then resorts to equity, he is bound wherever he would be at law.
    Inaction for a long period of time, coupled with knowledge of the matter complained of, bars a recovery in the orphans’ court: Lee’s Estate, 9 Pa. C. C. Rep. 655; In re Estate of Peter Rist, 192 Pa. 24.
    On the question of the lapse of time equity follows the analogy of the statute of limitations: Todd’s Appeal, 24 Pa. 429; Jones v. Turberville, 2 Vesey, Jr., 11; York’s Appeal, 110 Pa. 69; Adams’s Est., 183 Pa. 134; Bank of Gettysburg v. Thompson, 3 Grant, 114; Lyon v. Marclay, 1 Watts, 271; Johnston v. McCain, 188 Pa. 513; Bruner v. Finley, 187 Pa. 389.
    October 12, 1908:
   Opinion by

Porter, J.,

Abner Kelly died on September 23,1887, leaving a will which was duly probated on the 30th day of the same month, and containing this bequest: “To Mary Jane Wyke’s illegitimate son she laid to me by oath, my gray mare, saddle and bridle, together with five hundred dollars in lawful money of the United States.” Letters of administration c. t. a. were duly issued to his widow, Eddie C. Kelly, the appellee. The administratrix, on October 31,1887, filed a final account, which on December 17, 1887, was confirmed absolutely by the orphans’ court. The account showed a balance due the estate, which balance was in the account thus stated: “Balance due estate for Wyke $614.67.” The court did not at that time make any decree of distribution. Mary Jane Wyke had, after the birth of the child mentioned in the will, married a man named Wilson, and her son was thereafter known, sometimes as Wyke, sometimes as Wilson and sometimes as Kelly. At an early age the child left his home, and at the time of the death of Abner Kelly had not been heard of for several years. On November 22, 1890, the court not having until that time made a decree of distribution of the balance in the hands of the administratrix and the said child of Mary Jane Wyke being still absent and unheard of, Joshua A. Kelly presented his petition to the orphans’ court alleging that the said illegitimate son of Mary Jane Wyke had been absent and unheard of for at least eight years, that search and inquiry had failed to find him, that he was believed to be dead, and praying that the court decree the distribution of the balance in the hands of the administratrix to the next of kin of the decedent. The court upon this petition awarded a citation to the administratrix to show cause why the prayer of the petitioner should not be granted, and fixed the time for a hearing. The administratrix filed an answer to this petition, admitting the facts therein alleged and averring her readiness to comply with any order the court might lawfully make in the premises. The court on January 10, 1891, after a hearing, entered a decree distributing the entire balance in the hands of the administratrix, who thereupon paid out the money in accordance with said decree.

The matter slumbered in that condition for over fifteen years when, on May 7, 1906, a petition was presented to the court below by James E. Kelly, averring that he was the illegitimate son of Mary Jane Wyke, mentioned in the will of Abner Kelly; that the legacy had never been paid to him and praying for a citation on the administratrix, the appellee, to show cause why she should not pay over to him the sum of 1614.67, shown by her account to be in her hands, with interest thereon. A citation was awarded, to which the administratrix filed an answer, denying that the petitioner, now the appellant, was the son of Mary Jane Wyke referred to in the will, and alleging that she had already paid out the balance shown by the account to be in her hands, under the decree of the court as hereinbefore stated. The court after a hearing found, the following facts, in addition to those hereinbefore stated. James E. Kelly, the appellant, was the son of Mary Jane Wyke, referred to in the will, he had at an early age disappeared from his home and at the time of the death of Abner Kelly had not been heard of for several years. He did return to the neighborhood in the year 1893 or 1894, twelve or thirteen years before the filing of this petition, and he was then a man twenty-five or twenty-six years of age, he at that time learned of the legacy which had been bequeathed to him by the will of Abner Kelly, and also of the filing of the account by the administratrix and of the distribution of the balance shown by that account to other parties, pursuant to the decree of the court above mentioned, but made no demand for payment of said legacy to himself. Having learned these facts he again disappeared and was not heard of thereafter until at or about the time when he presented his petition asking for a citation on the administratrix, c. t. a. to pay over to him the said legacy. The learned judge of the court below held that upon this state of facts the appellant was barred by his own laches, and dismissed the petition. The petitioner appeals.

The contention of the appellant that the confirmation of the account, as filed by the administratrix, became a decree in his favor for the amount of the balance shown by the account, is not well founded. Even if the administratrix had had the power to determine the person to whom the balance in her hands was to be paid, she did not by this account do so. The account did not state the balance to be due to Wyke, although it did state a “Balance due estate for Wyke.” This amounted to nothing more than a declaration in the account that the accountant held that amount of money, the property of the estate. This could not be made a substitute for a decree of distribution, which could be made only by the court. The only effect of the settlement of an administration account in the orphans’ court is, to show the balance of assets in the administrator’s hands after the payment of debts and charges, and can have no bearing upon the amount due to legatees, or to repel the presumption of the payment of a legacy which arises from lapse of time: Foulk v. Brown, 2 Watts, 209. The distribution of the estate of a decedent is not required to await the settlement of the final administration account. “The settlement of an administration account showing a balance due the estate is therefore no more now than formerly an admission that the amount is actually in the hands of the accountant, and has not been paid over. Administration is still one thing — distribution another and distinct thing, the practice of blending an administration with a distribution account, has been condemned by the courts in strong terms as erroneous and fraught with mischief and disorder:” Commonwealth v. Snyder, 62 Pa. 153. The account of the administratrix and the confirmation thereof by the orphans’ court did not constitute a decree that the administratrix should pay over this money to the appellant; it was not even a judicial determination that she had not already paid it to him.

“As long as the relation of trustee and cestui que trust is acknowledged to exist between the parties, and the trust is continued, lapse of time can substitute no bar to an account or other proper relief for the cestui que trust. But when this relation is no longer admitted to exist, or time and long acquiescense have obscured the nature and character of the trust, or the acts of the parties or other circumstances give rise to presumptions unfavorable to its continuance; in all such cases, a court of equity will refuse relief upon the ground of lapse of time and its inability to do complete justice. This doctrine will apply even to cases of express trust:” Story’s Equity Jurisprudence, sec. 1520. Where there has been a distinct repudiation by the trustee of even a direct trust, and knowledge of the repudiation has been brought home to the cestui que trust, the case comes within the ordinary rules of limitation and laches. Laches will in equity bar a suitor of his remedy as effectually as the statute of limitations, and for the same reason, his own in-' action raising the identical presumption which the law raises, one from a mere lapse of time: App. v. Dreisbach, 2 Rawle, 287; Adams’s Estate, 183 Pa. 134; Bruner v. Finley, 187 Pa. 389; Rist’s Estate, 192 Pa. 24. When the appellant, in 1894, learned not only that this legacy had been bequeathed to him, but, also, that the administratrix had filed an account showing a balance sufficient to pay the legacy and that after the account had been confirmed and remained in that condition for years the orphans’ court had decreed that it should be paid to other parties by the administratrix, who had actually distributed it pursuant to said decree; the said decree having been entered because he, the present claimant, was believed to be dead; he was visited with notice that the administratrix no longer admitted that she held the money for him, and that it was actually claimed by others. He was then in a position to act, and it was his duty to act with reasonable.promptness. Instead of doing so, he without making any claim left the neighborhood and was unheard of for at least twelve years. After that long silence, he now returns and demands his money, long after any refunding bond which the administratrix might have taken could, under the provisions of the Act of June 30, 1885, P. L. 203, be made available for the recovery of the money which she had already paid out. The court below correctly held that the right of the appellant was barred by his laches.

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


text:
    Behrens, Appellant, v. Mountz.

      Trial — Improper remark of counsel — Continuance—Discretion of court —Review.

    The appellate court will not review the discretion of a trial judge in refusing to withdraw a juror and continue the case on account of an improper remark of counsel, where it appears that such remark was at once withdrawn upon objection, and that the court instructed the jury that they must not regard it.

      Evidence — Contemporary writings — Notice to produce — Admission of writing in evidence.

    Where two notices to quit possession are contemporary writings, the counterparts of each other, one of which was delivered and the other preserved, they may both be considered as originals and the one which was preserved may be received in evidence without notice to produce the one which was delivered.

      Trespass — Eviction—Illegal eviction — Possessory action.

    Where an unlawful eviction is effected under the form of a possessory action, the person who makes complaint is liable in damages for the trespass, although he may have instituted the proceeding at the instance of another person.

      Trespass — Unlawful eviction — Evidence—Matter immaterial to the issue.

    In an action of trespass to recover damages for an illegal eviction, it is error to admit letters indicating a willingness upon the part of the plaintiff to move out if she were paid a sufficient sum to recompense her for so doing, but in no way indicating that she did not assert that she had the right to remain.
    In such a case if the plaintiff denies having written the letters, it is not competent for the defendant to produce evidence contradicting ' her on that immaterial matter, and if such evidence is admitted it is error for the court to charge the jury that if they found that the plaintiff willfully perjured herself by the denial of the letters, then this would properly tend to discredit her claim and justify the conclusion that her testimony should be disregarded.

      Trial — Charge—Points.
    Where facts set forth in a point are undisputed, and the opposite party has admitted them to be true in his testimony, the party presenting the points is entitled to an unqualified affirmance of the legal conelusions arising from the facts stated in the points, and for the court to qualify the affirmance, is error.

      Decedents’ estates — Orphans’ court sale — Passing of title — Confirmation of title — Deed.
    The confirmation of an administrator’s sale by the orphans’ court, does not divest the title of the heirs of the decedent. Such title is only divested when the deed is actually delivered to the purchaser.

      Execution — Possessory proceeding — Act of April 9, 1849, P. L. 524.
    A proceeding to obtain possession under the Act of April 9, 1849, P. L. 524, instituted before a single justice of the peace is void for want of jurisdiction.

      Trespass — Wrongful eviction — Damages.
    Where a purchaser at an administrator’s sale, before a deed is delivered to him, institutes possessory proceedings under the Act of April 9, 1849, P. L. 524, before a single justice of the peace, and causes an heir of the decedent in possession to be evicted, he is guilty of an unlawful eviction, and is answerable for the consequences of his fault which are natural and probable, and súch as reasonable forecast and prudence might have foreseen. If in such a case there were crops on the land either ready for present use, or which ripened before the title passed to the purchaser, the person evicted is entitled to recover the value thereof; and if the furniture of the person evicted is thrown out of the house while it was raining, or when the weather conditions were such as to indicate rain, and the furniture was actually injured by the rain, the owner is entitled to damages for such injury.
    Argued March 9, 1908.
    Appeal, No. 19, March T., 1908, by plaintiff, from judgment of C. P. Cumberland Co., Feb. T., 1906, No. 210, on verdict for plaintiff in case of Frederick Behrens and Elizabeth J. Behrens, his wife, v. Jacob J. Mountz.
    Before Rice, P. J., Porter, Henderson,'Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Trespass to recover damages for wrongful eviction. Before Sadler, P. J.
    The facts are stated in the opinion of the Superior Court.
    At the trial when the plaintiff was under examination, the attorney for the defendant called the witness a liar. Plaintiff’s attorney thereupon petitioned the court to withdraw a juror and continue the case.
    Mr. Berg: I would like to withdraw any remark that I may have made inadvertently. The remark was made hastily and inadvertently; it was made to the witness, and I feel positive that the jury did not hear it.
    The Court: The remark made -by Mr. Berg was not made to the jury, as we understood it; nor with any intent on his part to address the jury; in any event, we instruct the jury if they did hear the remark, they must not regard it. Mr. Berg has explained that what he said was done in haste and with inadvertence. The motion to withdraw a juror is refused; to this, the plaintiff excepts and the bill is sealed. [1]
    Mr. Berg: We offer papers identified J. E. Q. Nos. 2 and 3 in evidence, being notices to quit.
    Mr. Biddle: Objected to; it having been stated that the papers in question are merely copies of the alleged notices, and the nonproduction of the originals not having béen accounted for, the copies are incompetent for any purpose in this case.
    The Court: The originals, if any, being in the hands of the plaintiff, the offer is received, notwithstanding the objections of the plaintiff; the plaintiff excepts and the bill is sealed. [2]
    J. B. Martin, J. P., was asked this question:
    Mr. Berg: “Q. Who came with Mountz when this complaint was made?”
    Mr. Biddle: Objected to as immaterial.
    Mr. Berg: The purpose is to show that while Jacob J. Mountz appears as complainant in the case, that it was done at the request and for John Nunemaker. The justice not having the complaint here, the next best thing would be to show this by the justice of the peace, if he remembers.
    Mr. Biddle: We object; the record itself has been offered in evidence, and that is the best and only evidence of what took place there; that the witness cannot impeach his own record or alter or vary it in any manner; that the proposed evidence is incompetent, irrelevant and immaterial.
    Mr. Berg: “Q. Can you find the complaint? A. I might if I looked for it. Q. Were you not subpoenaed to produce all papers? A. Yes.”
    The Court: You may show that this proceeding was instituted at the instance of the administrator, in support of what Mountz had said; to this ruling the plaintiff excepts and the bill is sealed. [3] *
    Mr. Berg: “ Q. Did Mr. Mountz make the complaint for himself, or was it at the instance of Mr. Nunemaker? A. It was at the instance of Mr. Nunemaker.”
    .Mr. Berg: We offer in evidence letters J. E. Q. Nos. 4, 5 and 6 for the purpose of showing that Mrs. Behrens did not claim to be the owner of the property, but was only endeavoring to receive money from the administrator.
    Mr. Biddle: Objected to, that the proposed evidence will not show what it is offered for, and that it is not competent in any aspect of the present case.
    Mr. Berg: They are also offered for the purpose of contradicting Mrs. Behrens when she denied her signatures.
    Mr. Biddle: We object further that the notes cannot be used in evidence to affect any rights or claims of-Frederick Behrens, one of the plaintiffs, and the husband of the alleged writer of the letters.
    The Court: The letters are admitted for the purpose of contradicting Mrs. Behrens, and for the purpose of showing that at the time she did not claim title to the property by reason of any conveyance to her; to this plaintiff excepts and the bill is sealed. [4]
    Mr. Berg reads letters Nos. 4, 5 and 6 to the jury.
    “ (Copy No. 4.)
    “West Hill, Cumb. Co., Pa.
    “ Mar. 26th, 1901.
    “Mr. Geo. E. Mills,
    “ Dear Sir:
    “ I received your letter yesterday, and in reply will say that if you can give me $100.00, I will move away. I don’t want to rent. I had bought a house and the man said we must pay $100.00 on it before we can move in, and I will not move twice, as it costs enough to move once; please come out this afternoon and bring me the money yourself. I will allow you $5.00 for your trouble, as Mr. Behrens will not be at home he went over to Mooredale to see the man about the house, and I don’t care to send any one in, and I cannot come myself, and if you come yourself, everything can be made plain; hoping to see you, I remain,
    “Very Respectfully,
    “Mrs Frederick Behrens.”

      “ (Copy No. 5.)
    “Greider, Cumb. Co., Pa.
    “Jan. 14, 1901.
    “Mr. Geo. E. Mills,
    “ Dear Sir:
    “As I have been told that you intend to have this affair of ours settled soon. I wish to inform you that when you are ready I want you to send me word, and if you are to do the settling up I don’t see any use in having more hands in this affair than what is necessary therefore I wish you to distinctly understand now that you don’t offer to give my share of money into any one elses hands but my own. I will pay out of my hands what is to be paid out afterwards, but here is one thing I will say that I will not settle unless Mary is agreed to let Fred have $50.00 Dollars ahead of us heirs for what labor he has done on this property for these last two years. I will stay right where I am if he does not get even that much for what was done here. I want you to speak to her about it. Mr. Mills I hope you will try to do what is right on all sides; leaving the matter to you now, I remain,
    “Very Respectfully,
    “Mrs. Frederick Behrens.
    “P. S. — If I send a written order with my husband, you can give him my money, if I should happen not to come for it myself.”
    “ (Copy No. 6.)
    “West Hill, Cumb. Co., Pa.
    “March 25, 1901.
    “Mr. Geo. E. Mills,
    “Dear Sir:
    “I write you this letter concerning those letters you have been sending out here to Mr. Behrens. I will kindly ask you now don’t send any more to him, you or Mr. Mountz cannot hold him for unlawful detainer of the premises, I am the one that is holding possession here not he, he is doing my work, and he has right to stay with me, it is not his fault that the place is not vacated. I gave you fair warning to hand over my money long ago — then I would have been gone; do you think I am going to leave here without having my interest paid over to me. I never will, and the time is close at hand that I will be unable to go any where for quite a while, so you cannot blame me for not moving even now; if I am compelled to move when I am not able some one will have to bear the consequences if something bad should occur. I wish you could arrange matters with Mr. Mountz.
    “Very respectfully,
    “Mrs. Frederick Behrens.”
    Plaintiff presented this point:
    4. The plaintiffs having been ousted from the premises which they occupied' through the participation of the defendant, and for the purpose of giving him possession thereof, which possession was so obtained by him, he is estopped from now claiming that he was not responsible for such ouster, and he must answer in damages for such injuries as the plaintiffs suffered by reason thereof. Answer: Affirmed, if you find that defendant participated as set forth in this point. The defendant denies that he did anything except to aid in carrying out a chaff bed, at the request of the sheriff. [5]
    The court charged in part as follows:
    [He (Mountz) gave notice to the plaintiffs to quit the premises and subsequently requested them to do so, and Mr. Mills, attorney for Mr. Nunemalcer, the administrator, subsequently requested them to do so, in March, 1900, three months after the date of first notice, stating that it was his desire to have possession of the property on April 1, 1901, when deed was to be made and possession given, in pursuance of the order of the court.] [6]
    [These proceedings were begun in the name of J. J. Mountz, who states that he did so at the instance of John Nunemaker, the administrator, and for the latter, and Justice Martin supports him in this declaration.] [7]
    [Mr. Nunemaker testified to the payment of money to his daughter, Mrs. Behrens, the present plaintiff, under the agreement with her attorney, Liedich.] [8]
    [The title of Mrs. Behrens to the land, as an heir and grantee of her father, has been divested .by the orphans’ court sale, and it was her duty to remove therefrom.] [9]
    [There can be no recovery for the berries which were growing in the fields, or the cherries which were growing on the trees. They are not emblements; they had not been gathered at the time of the eviction. When they were gathered, if at all, the testimony'has not showed, and in any event, we deem it immaterial. As to the potatoes, we instruct you, that if they were in the ground when the deed was delivered to Mountz, they passed with the land.] [10]
    [As to the vegetables, beans, lettuce, etc., claimed for, it does not appear when they were appropriated and used by Mountz, if at all; besides, conceding that the proceeding to recover possession, instituted before Martin, was not in due form, Mountz, as already stated, had the right to pay the balance of the purchase money at any time, and thus secure the right of possession, and then proceed by legal process to have the plaintiffs evicted, and when this had been accomplished would have had the right to take possession of the premises and use the vegetables, which they, the plaintiffs, had without lawful right planted on the premises.] [11]
    [The plaintiffs cannot recover for any annoyances occasioned to them by the eviction.] [12]
    [It is a rule of law that where one willfully and corruptly testifies falsely to a matter material to the issue, a jury may be justified in wholly disregarding the testimony of the witness. If you, therefore, find that Mrs. Behrens willfully perjured herself, by the denial of the letters alleged to have been written by herself and offered in evidence, then this would properly tend to discredit her claim, and justify the conclusion that her testimony should be disregarded.] [13]

      [There can be no recovery for any furniture that was destroyed aftér the eviction by reason of inclement weather, or otherwise. It was only what was injured or destroyed in removing it from the house, and placing it upon the roadside, that there can be a recovery for.] [14]
    Verdict and judgment for plaintiff for six cents. Plaintiff appealed.

      Errors assigned were (1) refusal to continue the case; (2-4) rulings on evidence, quoting the bill of exceptions; (5-14) above instructions, quoting them.

      E. M. Biddle, Jr., with him F. B. Sellers, Jr., for appellant.—
    Up to September 21, 1901, the title to the land, and the right to its possession and to the income and profits thereof, remained in Mrs. Behrens, the plaintiff: Greenough v. Small, 137 Pa. 132; Dunlap’s App., 182 Pa. 267.
    From the nature of the subject, the defendant alone could give the exact date when he converted each part of the crops, and under such conditions the plaintiffs would not be required to produce this evidence: McCown v. Quigley, 147 Pa. 307.
    Inconvenience resulting from a tort, where it amounts to physical discomfort, is a proper subject of compensation: Sedgwick on Damages, sec. 42; Scott Twp. v. Montgomery, 95 Pa. 444; Emery v. Lowell, 109 Mass. 197; Ross v. Leggett, 61 Mich. 445.
    It is not the law that men are responsible for their negligence only to the extent of the injuries which they know would follow from it: Pittsburg v. Grier, 22 Pa. 54; Scott v. Hunter, 46 Pa. 192; McGrew v. Stone, 53 Pa. 436; Fairbanks v. Kerr, 70 Pa. 86; Billmeyer v. Wagner, 91 Pa. 92; West Mahonoy Twp. v. Watson, 116 Pa. 344.
    The plaintiff, on cross-examination, denied authorship of the letters, and her denial should have been accepted as conclusive: Wright v. Cumpsty, 41 Pa. 102; Hildeburn v. Curran, 65 Pa. 59.
    In the face of her denial, the audible intimation of the counsel for defendant that she was lying when she made this denial was highly improper, and the court’s refusal to withdraw a juror and continue the case at defendant’s costs was erroneous: Fisher v. Penna. Co., 34 Pa. Superior Ct. 500; Wagner v. Hazle Township, 215 Pa. 219; Walsh v. Wilkes-Barre, 215 Pa. 226.
    The admission of copies of the notices served on the plaintiff by Mountz and Mills (second assignment of error) was flagrantly erroneous: Milliken v. Barr, 7 Pa. 23; Carland v. Cunningham, 37 Pa. 228.
    The plaintiff was entitled to an unqualified affirmance of his fourth point (fifth assignment): Citizens’ Pass. Ry. Co. v. Ketcham, 122 Pa. 228; Lingle v. Ry. Co., 214 Pa. 500; McCarthy v. DeArmit, 99 Pa. 63.

      S. B. Sadler, with him Herman Berg, Jr., for appellee.
    It is true as a general principle that the title of the purchaser at an orphans’ court sale is not complete until the deed has been delivered; but the decree of confirmation is conclusive evidence that the title of the decedent is legally transferable to the purchaser upon compliance with the conditions of sale: Potts v. Wright, 82 Pa. 498; Fahrig v. Schimpff, 199 Pa. 423; Robb v. Mann, 11 Pa. 300; Ins. Co. v. Graybill, 74 Pa. 17; Holmes’ App., 108 Pa. 23; Demmy’s App., 43 Pa. 155; Frick Coke Co. v. Laughead, 203 Pa. 168; Erb v. Erb, 9 W. & S. 147; Dunlap’s App., 182 Pa. 267; Greenough v. Small, 137 Pa. 132; Leshey v. Gardner, 3 W. & S. 314.
    . Where the parties claim to hold title in a certain way, declarations or contradictions inconsistent therewith may be shown: Miller v. Baker, 160 Pa. 172; Akin v. McKeown Oil Co., 189 Pa. 39; Wilson v. Wilson, 137 Pa. 269; Moore v. Neubert, 21 Pa. Superior Ct. 144; Dougherty v. Railways Company, 213 Pa. 346; Commonwealth v. Greason, 204 Pa. 64.
    It is peculiarly the discretionary duty of the trial court to see that the trial is conducted in a legal and orderly manner, and unless that discretion is abused such order is not the subject of an appeal: Commonwealth v. McMahon, 14 Pa. Superior Ct. 621; Commonwealth v. Striepeke, 32 Pa. Superior Ct. 82; Hale v. Hale, 32 Pa. Superior Ct. 37; Thompson v. Stevens, 71 Pa. 161.

      October 12, 1908.'
   Opinion by

Porter, J.,

This is an action of trespass for damages resulting from an unlawful eviction. Esther Nunemaker died on March 3, 1899, intestate, seized of a small farm in Frankfort township, Cumberland county, and leaving to survive her as sole heirs at law her husband, John Nunemaker, and two daughters, Mary Nunemaker and Elizabeth, married to Frederick Behrens. John Nunemaker took possession of the farm as tenant by the curtesy, and on March 29, 1899, leased a part of the farm to Frederick and Elizabeth J. Behrens, the plaintiffs and appellants in this case, who took possession under the said lease. Subsequently,, on June 26, 1899, John Nunemaker conveyed his estate by the curtesy in said farm to his two daughters, Elizabeth Behrens and Mary Nunemaker, the deed being delivered to the grantees about two days after that time, and being subsequently recorded. After the delivery of said deed the plaintiffs continued in possession of the whole farm, holding under the deed instead of under the lease. On January 20, 1900, John Nunemaker obtained letters of administration on the estate of Esther Nunemaker, and, on February 5, 1900, secured from the orphans’ court of Cumberland county an order for the sale of the said farm for payment of the debts of the said decedent. This order of sale having subsequently been modified and continued, the administrator sold the farm, on October 27, 1900, to John J. Mountz, the defendant and appellee, for the sum of $672, of which amount the defendant paid ten per cent on the day of sale and forty per cent additional on December 11, 1900; the sale was confirmed on November 26, 1900, and the remaining one-half of said purchase money was, according to the terms of sale, to be paid on April 1, 1901. Mountz, the purchaser and the defendant in this action, made no further payment on account of the purchase money until September 21, 1901, on which day he paid the balance of the purchase money and Nunemaker, the administrator, delivered to him a deed for the farm. Mountz, on or about December 15, 1900, notified Mrs. Behrens to leave the farm and surrender possession toNim within ninety days from that date, and G. E. Mills, Esq., attorney for John Nunemaker, the administrator, also gave her notice to quit by the middle of March, 1901. Mrs. Behrens refused to surrender possession as thus required, and remained in possession. Mountz, on June 21, 1901, while half of the purchase money still remained unpaid, began a proceeding, presumably under the Act of April 9, 1849, P. L. 524, against Frederick Behrens and Elizabeth Behrens, his wife, to obtain possession of the farm. The proceedings were had before a single justice who fixed the date for the hearing seven days after the issuance of the summons, and, after a continuance, the case was heard in the absence of the defendants before the one justice and a jury of six men. Judgment was entered against the defendants in that action on July 3, 1901, and on the same day a writ of possession was delivered by the justice to the sheriff. On July 3, 1901, the sheriff with his deputy and with J. J. Mountz, this defendant, and several members of the family of the defendant went to the house occupied by the appellants and, in the absence of Frederick Behrens, forcibly evicted Elizabeth Behrens and her children and removed all the furniture, bedding, provisions, etc., of plaintiffs and deposited them along the side of the public road. Mountz brought his household goods with him at the time, ready to take possession as soon as the plaintiff’s household goods had been removed from the domicile, and at once moved in with his family and has since that time retained possession of the farm. The plaintiffs brought this action for damages alleged to have resulted from an unlawful eviction and under the instructions of the court recovered nominal damages in the court below and now appeal.

The first specification of error refers to a remark made by counsel for the appellee, when cross-examining Elizabeth Behrens at the trial in the court below. The remark was a flagrant violation of the principles which in every court ought to control the orderly administration of justice, it was likewise an abuse of that advantage which counsel, as an officer of the court, has over the witness who is under examination. The remark was however at once withdrawn upon objection being made and the court instructed the jury that they must not regard it. The nature of the remark was such that the necessity for the withdrawal of a juror and continuance of the cause was one of those matters in which much must necessarily be left to the discretion of the court below: Moore v. Neubert, 21 Pa. Superior Ct. 144; Dougherty v. Railways Company, 213 Pa. 346; Commonwealth v. Greason, 204 Pa. 64. The question is a very close one but we do not feel warranted in convicting the court below of an abuse of discretion and the specification is dismissed.

The second specification of error refers to the admission in evidence of copies of the notices to quit alleged to have been served by the defendant upon the plaintiffs, without notice having been given to produce the notices actually served. The' papers offered in evidence and those which had been delivered to the plaintiffs were contemporary writings, the counterparts of each other, one of which was delivered and the other preserved; they may both be considered as originals and the one which was preserved may be received in evidence without notice to produce the one which was delivered: Eisenhart v. Slaymaker, 14 S. & R. 153; Cole v. Ellwood Power Co., 216 Pa. 283. This specification of error is not sustained.

The third specification of error refers to the testimony of J. B. Martin, the justice of the peace before whom the defendant, Mountz, instituted the possessory action, under the pretended forms of which the plaintiffs were evicted. This testimony was to the effect that Mountz himself had made the complaint, but that it was done at the instance of Nunemaker, the administrator who had made the sale of the land by direction of the orphan’s court. This testimony did not in itself work any injury to plaintiff’s cause, for Mountz himself remained liable for all the damages, if any resulted from an unlawful trespass, even although there might have been other persons who would have been liable also if they had been joined as defendants in this action. This assignment is, for this reason, not sustained. The effect which the learned judge of the court below gave to this evidence in his charge is, however, an entirely different matter.

We are of opinion that the court below erred in admitting in evidence the letters alleged to have been written by Mrs. Behrens to G. E. Mills, Esq., who was the attorney representing Nunemalcer, the administrator. The letters were offered “ for the purpose of showing that Mrs. Behrens did not claim to be the owner of the property, but was only endeavoring to receive money from the administrator.” The letters did not show that Mrs. Behrens did not claim to be the owner of the property. The cases are not many in which the actual owner of property would not agree to move out upon the payment of a sufficient sum of money, the amount is usually the only matter with regard to which there is any difficulty in effecting an arrangement. The letters did indicate a willingness upon her part to move out in case she was paid a sufficient sum of money to recompense her for doing so, but in none of them is there any intimation that she did not assert that she had the right to remain. These letters were immaterial to the issue being tried. Mrs. Behrens having denied that she had written them, it was not competent for the defendant to produce evidence contradicting her on that immaterial matter. The evidence contradicting her on that immaterial question having been improperly admitted, it was error for the court in charging the jury to say: "If you, therefore, find that Mrs. Behrens wilfully perjured herself, by the denial of the letters alleged to have been written by herself and offered in evidence, then this would properly' tend to discredit her claim and justify the conclusion that her testimony should be disregarded.” The fourth and thirteenth specifications of error are sustained.

The facts as set forth in plaintiffs’ fourth point were undisputed, the defendant himself had admitted them to be true in his testimony, the plaintiffs were entitled to an unqualified affirmance of the legal conclusions arising from these facts, and for the court to qualify the affirmance was error: Citizens’ Passengers Railway Co. v. Ketcham, 122 Pa. 228; Lingle v. Scranton Ry. Co., 214 Pa. 500. The court affirmed the point but added: “ if you find that defendant participated as set forth in this point. The defendant denies that he did anything except to aid in carrying out a chaff bed, at the request of the sheriff.” In thus qualifying the point the court inadvertently misstated the testimony. The defendant admitted that he made the complaint before the justice of the peace upon which the whole proceeding was founded. He admitted that he had brought his household goods there in company with the sheriff for the purpose of taking possession and that he did take possession of the house as soon as the goods of the plaintiffs were thrown but. He did not, as stated by the court, deny that, he did anything except to aid in carrying out a chaff bed. It was the father of the defendant who had testified as to what he himself did, who had given this account of his participation in the proceeding. The defendant had in his testimony admitted that he helped to carry out the goods and put them along the road, alleging that he had been deputized by the sheriff to help. He admitted that, after the plaintiffs were evicted, he had used the sweet corn, the vegetables growing in the garden and the hay in the fields, some of which had been actually cut by the plaintiffs. The fifth specification of error is sustained.

The learned judge in charging the jury said: “These proceedings were begun in the name of J. J. Mountz, who states that he did so at the instance of John Nunemaker, the administrator, and for the latter, and Justice Martin supports him in this declaration.” This language of the charge if it stood alone might not have been objectonable, but taken in connection with the language used by the learned judge in qualifying the fourth point submitted by the plaintiffs, and the oral charge as a whole, it must have left upon the minds of the jury the impression that John Nunemaker was the person who was responsible for the eviction and not this defendant. The tendency of the whole charge was to lead the jury to the conclusion that this defendant was only nominally connected with the proceeding. That this defendant is responsible for any damages suffered, if the eviction was unlawful, is too clear for argument, he having made the complaint which originated the proceeding and having aided in the actual physical execution of the writ of possession: McCarthy v. DeArmit, 99 Pa. 63. The seventh specification of error is sustained. The learned court fell into error in stating: “Mr. Nunemaker testified to the payment of money to his daughter, Mrs. Behrens, the present plaintiff, under an agreement with her attorney Leidich.” The witness did not so testify and the eighth specification of error is sustained.

The learned judge charged the jury as follows: “The title of Mrs. Behrens to the land, as an heir, and grantee of her father, had been divested by the orphan’s court sale, and it was her duty to remove therefrom.” The learned judge evidently fell into the error of holding that the confirmation of the sale by the orphan’s court divested the title of the heir. “It is well settled that an orphan’s court sale does not divest the title of the heirs until after the confirmation thereof and conveyance delivered under the order of the court. . . . The sale, even after confirmation, does not divest the title of the heirs of the decedent for it remains in the power of the court until a deed has been executed and delivered. Until then the heirs’ right to maintain ejectment, even against the purchaser has not gone. . . . Until then no conversion takes place, and if the heir of the decedent dies even subsequently to the confirmation of the report of sale but before the deed is delivered, his interest descends as land not as money:” Greenough v. Small, 137 Pa. 132. The confirmation by the orphans’ court of a sale of real estate by an executor made in pursuance of his authority, is not complete until the purchase money be paid and a deed delivered. A sale and confirmation alone does not divest the title of the heir: Leshey v. Gardner, 3 W. & S. 314. Upon a sale of real estate of an intestate by an order of the orphans’ court for the payment of debts, the title remains in the heir until the contract of sale be executed by the payment of the purchase money and delivery of the deed: Erb v. Erb, 9 W. & S. 147; Biggert’s Estate, 20 Pa. 17; Schmid’s Estate, Dunlap’s Appeal, 182 Pa. 267. The defendant did not acquire title to the land until the day when he paid the balance of the purchase money and received his deed on September 21,1901, more than two months after he had forcibly evicted these plaintiffs. The ninth specification of error is sustained.

■ The proceeding to obtain possession under which the defendant acted, having been instituted before a single justice of the peace, was void for want of jurisdiction: Merritt v. Whitlock, 200 Pa. 50; Sperry v. Seidel, 218 Pa. 16. The eviction of the plaintiffs was, therefore, illegal and this defendant, who instituted the action and assisted in the dispossession, is liable for damages in an action of trespass. The dispossession was without any legal process to justify it, the manner of the dispossession therefore was no protection to the defendant against this action; it was not incumbent on the plaintiffs to reverse the judgment which the justice of the peace had no jurisdiction to enter. The title and right of possession was at' the time of the eviction in the plaintiffs and not in the defendant, the eviction was therefore unlawful, not only because the process was void but because the defendant had no right to possession. The defendant turned the plaintiffs out under a void legal process at a time when he had no right to turn them out even if he had proceeded in a regular legal manner. The general rule is that a man is answerable for the consequences of his fault which are natural and probable, such as reasonable forecast and prudence might have foreseen: Scott v. Hunter, 46 Pa. 192; McGrew v. Stone, 53 Pa. 436; West Mahanoy Township v. Watson, 116 Pa. 344. The damages in the present case were not to be measured by the benefits accruing to the defendant, but by the injuries sustained by the plaintiffs. If there were upon the land from which the plaintiffs were evicted fruits and vegetables which were about to ripen and crops which were matured or were about to mature, and which did ripen and mature prior to September 21,1901, when the title passed to the defendant, and if the plaintiffs were by the eviction deprived of the opportunity to gather those fruits and crops, then they were in this action entitled to recover the value thereof. If there were sweet corn, beans and other vegetables growing in the garden which were ready for present use or which the evidence established would have been ready for use prior to the time defendant actually acquired title to the land, the plaintiffs were entitled to compensation for the loss of such vegetables. If the furniture of the plaintiffs was thrown out of the house while it was raining, or when the weather conditions were such that they ought to have foreseen that it was about to rain, and if it was actually injured by the rain, the defendant is just as responsible for that injury as if he had thrown the furniture into the water. The tenth, eleventh and fourteenth specifications of error are sustained.

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


author: Henderson, J.,

text:
    Scott’s Estate
    (No. 1).

      Will — Construction—Vested and contingent interest — “Then living”— Children — Grandchildren.
    The general rule is that such expressions as “surviving brothers,” “who may then be living” and similar words are construed to relate to the death of the testator unless from the language of the will it is clear that they refer to some other date. If the intention is clear, however, that must control, and the particular words be given the effect which the testator designed. If this .intention can be ascertained the consideration that the disposition made of his property by the testator is unequal or inequitable must be left out of the case.
    Under a bequest to children, grandchildren are excluded unless it appear from the will that it was the intention of the testator to make provision for such relatives.
    Where real or personal estate is devised or bequeathed to such individuals as shall attain a given age or who shall sustain a certain character or do a particular act or be living at a certain time without any distinct gift to the whole class preceding such restrictive description, so that the uncertain event forms part of the description of the devisee or legatee, the interest so devised is contingent on account of the person, for the reason that until the age is attained or the character is sustained or the act is performed the person is unascertained.
    The testator owned two parcels of land, one of which he directed to be sold and the proceeds divided among the children of his first wife in the shares set forth in the will. As to the other piece of real estate it was provided that after the decease of his wife and the arrival of his youngest son at the age of twenty-one years the executors might be required by a majority of those having an interest therein to sell and dispose of the same. Of the proceeds of the sale $1,000 was to be given to each of his sons G. and W., and to his daughters C. and S., the same amount which he gave to each of their older sisters out of the first piece, with the further direction that in case there should be a surplus over the distribution as thus arranged, such surplus was to be “equally divided amongst all my children that may be then living.” Held, that the interests in the surplus of the testator’s estate were contingent, and vested only in his children who were then living when the land was sold, and the surplus thereby created.
    Argued April 14, 1908.
    Appeal, No. 4, April T., 1908, by William W. McBride, Administrator of Emily S. Morgan, deceased’, et al., from decree of O. C. Allegheny Co., Dec. T., 1906, No. 70, sustaining exceptions to adjudication in Estate of John Scott, deceased.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to adjudication.
    From the record it appeared that John Scott died in October, 1859, leaving certain real estate which he directed his executors to sell.
    The material portions of John Scott’s will were as follows:
    “To my son John Hervey Scott the sum of one thousand dollars, and then having divided the remainder into five equal parts/pay one of said equal parts to each of my five daughters, Mary Jane, Sarah, Emily, Harriet and Ellen, — but myself having given to my daughter Mary Jane five hundred dollars, and to Sarah two hundred dollars, I direct that one-half of said sums be deducted from their proper shares of said division and added in equal shares to shares of their other three sisters. And I further will and direct that at any time after the decease of my wife, my said executors may be required by a majority of those having an interest therein to sell and dispose of all that portion of my real estate on which I now reside together with all the personal estate then having properly belonged to my said wife, and divide the proceeds of such sale in manner and proportions as follows, viz:
    “To each of my sons George, and Wilson, one thousand dollars and to each of their sisters Clara and Seeneth the same amount that had been awarded to each of their elder sisters under the first distribution as above directed, and in the event of there being a surplus over and above the said distribution as above directed, I order and direct that said surplus be equally divided amongst all my children that may be then living, and I further order and express as my will that in the event of my beloved wife being removed by death, previous to the time at which my youngest son would have arrived at the age of twenty-one years said sale and distribution shall not take place until that period shall have arrived.
    “My oldest sons Samuel and James being already provided for they are not to be held as having any further interest in my estate except as in the contingency above provided for.”

      The question involved was whether the residue of testator’s estate vested in all testator’s children who were living at the time of his death, or in those only who were living at the time of the executor’s sale. The auditing judge held that the estate was vested in the children who were living at the time of his death, and awarded the surplus among all of the testator’s descendants.
    Exceptions to the adjudication were sustained by the court.

      Error assigned was in sustaining exceptions to adjudication.

      J. S. Ferguson, with him A. C. Johnson, for appellants.

      G. C. Lewis, with him George W. Flowers and W. H. 8. Thomson, of Thomson & Thomson, for appellees.
    October 12, 1908:
   Opinion by

Henderson, J.,

The question presented by this appeal is whether the residue of the testator’s estate vested in all his children who were living at the time of his death or in those only who were living at the time of the sale. The appellant contends that the words of the will “then living” refer to the time of the testator’s death, while the appellees assert that the devise of the residuary estate was contingent and only became vested at the date of the sale. The testator owned two parcels of land, one of which he directed to be sold and the proceeds divided among the children of his first wife in the shares set forth in the will. As to the other piece of real estate it was provided that after the decease of his wife and the arrival of his youngest son at the age of twenty-one years the executors might be required by a majority of those having an interest therein to sell and dispose of the same. Of the proceeds of the sale $1,000 was to be given to each of his sons, George and Wilson, and to his daughters, Clara and Seeneth, the same amount which he gave to each of their older sisters out of the first piece, with the further direction that in case there should be a surplus over the distribution as thus arranged, such surplus was to be “ equally divided amongst all my children that may be then living.” This will like all others mustbe interpreted in the light of the intent of the testator and this means the actual intent as discovered by a consideration of the whole will. It was said in Woelpper’s Appeal, 126 Pa. 562, to be the great general and controlling rule that the intent of the testator shall prevail and that the canons of construction are subservient to this rule and made to aid, not to override it. Even technical words are diverted from their technical sense where it was clearly the intention of the testator to give them a different meaning. Much less should such phrases as “then living” be accorded an unbending strength when they have no technical significance. The general rule undoubtedly is that such expressions as “surviving brothers,” “who may then be living” and similar words are construed to relate to the death of the testator unless from the language of the will it is clear that they refer to some other date. If the intention is clear, however, that must control, and the particular words be given the effect which the testator designed: Fox’s Appeal, 99 Pa. 382; Mulliken v. Earnshaw, 209 Pa. 226. If this intention can be ascertained the consideration that the disposition made of his property by the testator is unequal or inequitable must be left out of the case. Except as forbidden by law he may do what he will with his own and it is not the right of the court to substitute the wish or desire of any other person for that of the testator because it seems a fairer distribution of the estate. We are not at liberty under the authorities to include grandchildren or issue in the word “children.” That the latter word may have the larger signification has been held in some cases where it was evidently used as coextensive with “issue” or where there were no children to answer the description, but where the testator had children there is no room for the assumption that grandchildren were also intended. Under a bequest to children, grandchildren are excluded unless it appear from the will that it was the intention of the testator to make provision for such relatives. ' But this construction can only take place where the intention is clear or the implication necessary as in a case where there are no other children than grandchildren or where there is a limitation over in default of issue: Hallowell v. Phipps, 2 Whart. 376; Steinmetz’ Estate, 194 Pa. 611. This will does not disclose an intention of the testator to provide for the grandchildren and no necessity exists for such interpretation because there were children surviving to whom the words of the devise applied.

The devise of the surplus was not to all of the testator’s children, but to all of them “ that may be then living.” It was not a gift to the children as a class but to such of them as might be living at the occurrence of an event contemplated by the testator. This event was evidently the sale of the land and the distribution of its proceeds, which were regarded as one transaction. There could, of course, be no distribution until after the death of the widow and the youngest son had arrived at twenty-one years of age and a sale pursuant to the direction of a majority of the persons interested, nor until the payment to the sons, George and Wilson, and the sisters, Clara and Seeneth, of the amounts they were entitled to from the sum realized from the land. When the surplus is thus created and determined it is distributable among those of the testator’s children living at that time. The connection in which the word “then” is used indicates, we think, that there could not have been any other period in contemplation except the time when the land was actually sold. This view is strengthened by the provision of the succeeding clause of the will that the sons, Samuel and James, were not to have any further interest in the estate “ except as in the contingency above provided for.” This has evident reference to the duration of life of these sons until by consent of a majority of the testator’s living children the land should be sold to carry out the provisions of the will. The interests thus created were contingent, for until the happening of the event producing the fund to be distributed it could not appear that any one of the children would be in the class of those to whom the gift was made. It is a well established rule that where real or personal estate is devised or bequeathed to such individuals as shall attain a given age or who shall sustain a certain character or do a particular act or be living at a certain time without any distinct gift to the whole class preceding such restrictive description, so that the uncertain event forms part of the description of the devisee or legatee, the interest so devised is contingent on account of the person, for the reason that until the age is attained or the character is sustained or the act is performed the person is unascertained: Craige’s Appeal, 126 Pa. 223; Rudy’s Estate, 185 Pa. 359; Mulliken v. Earnshaw, 209 Pa. 226; Smith on Ex-ecutory Interests, 281. Such is the import of all the later authorities in this state. We are obliged to hold accordingly that the interests in the surplus of the testator’s estate were contingent and vested only in his children who were living when the land was sold, and the surplus thereby created.

The decree is affirmed:


text:
    Scott’s Estate
    (No. 2).
    Argued April 14, 1908.
    Appeal, No. 11, April T., 1908, by William W. McBride, Administrator of Emily S. Morgan, deceased, et ah, from decree of O. C. Allegheny Co., Dec. T., 1906, No. 70, sustaining exceptions to adjudication in Estate of John Scott, deceased.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    October 12, 1908:
   Opinion by

Henderson, J.,

This case involves the same questions decided in the appeal of William W. McBride, administrator, etc., ante, p. 342, in which an opinion has this day been filed. For the reasons there given the decree in this case is affirmed.


text:
    Scott’s Estate
    (No. 3).
    Argued April 14, 1908.
    Appeal, No. 12, April T., 1808, by William W. McBride, Administrator of Emily S. Morgan, deceased, et al., from decree of O. C. Allegheny Co., Dec. T., 1906, No. 70, sustaining exceptions to adjudication in Estate of John Scott, deceased.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    October 12, 1908:
   Opinion by

Henderson, J.,

This case involves the same questions decided in the appeal of William W. McBride, administrator, etc., ante, p. 342, in which an opinion has this day been filed. For the reasons there given the decree in this case is affirmed.


author: Orlady, J.,

text:
    Russell v. Russell, Appellant.

      Divorce — Cruel and barbarous treatment — Mental suffering — Evidence.
    Any unjustifiable conduct on the part of either the husband or the wife which so grievously wounds the mental feelings of the other, or so utterly destroys the peace of mind of the other as seriously to impair the bodily health or endanger the life of the other, or which utterly destroys the legitimate ends and objects of matrimony constitutes cruelty, although no physical or personal violence may be inflicted, or even threatened or reasonably apprehended.
    To warrant the granting of a divorce on the ground of the conduct on the part of either the husband or wife, as to render the condition of the other party intolerable and life burdensome, where there is no proof of overt bodily harm actually inflicted or threatened, the evidence should be strong and convincing, the course of ill-treatment complained of must haye been long continued, and of a serious character.
    A divorce will be granted to a wife where the evidence shows that the husband treated the libelant as a menial in the presence of servants, asserted that she was under the influence of designing and wicked persons, circulated reports that she was of unsound mind, kept her by words and actions in constant fear that he intended to resort to legal proceedings to test her sanity and deprive her of her liberty, and generally exercised over her a continual arrogant domination, affecting her health, and rendering her life intolerable and burdensome.
    Argued May 7, 1908.
    Appeal, No. 202, April T., 1908, by defendant, from decree of C. P. No. 1, Allegheny Co., June T., 1903, No. 459, granting divorce in case of Maria F. Russell, by her next friend, Emma H. Russell, v. Charles T. Russell.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.

      Libel for divorce. Before MacFarlane, J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was decree granting divorce.

      J. McF. Carpenter, of Carpenter & Chalfant, with him W. M. McJunkin, for appellant.
    Libelant wholly failed to make proof of the facts essential to sustain the decree: Smith v. Smith, 15 Pa. Superior Ct. 366; Middleton v. Middleton, 187 Pa. 612; Richards v. Richards, 37 Pa. 225; Rishel v. Rishel, 24 Pa. Superior Ct. 303; Schulze v. Schulze, 33 Pa. Superior Ct. 325; Smith v. Smith, 19 Phila. 389; Carter v. Carter, 1 Kulp, 359; Roth v. Roth, 15 Pa. Superior Ct. 192.

      S. G. Porter, with him L. K. Porter and D. F. Patterson, for appellee.
    The indignities need not be such as to endanger life or health; it is sufficient if the course of treatment be of such a character as to render the condition of any woman of ordinary sensibility and delicacy of feeling intolerable and her life burdensome: Krug v. Krug, 22 Pa. Superior Ct. 572.
    October 19, 1908:
   Opinion by

Orlady, J.,

In the libel filed in this case, it is charged that the defendant offered such indignities to the person of the libelant as to render her condition intolerable and her life a burden, thereby compelling her to withdraw from his home and family. In the specification of indignities it is alleged that she was treated with disrespect by the defendant in the presence of servants and others; that insulting language was used to her; that the husband circulated reports among her friends to the effect that she was of unsound mind, and other stories that were calculated to affect her character and her right to receive, entertain or visit friends, which stories reflected upon her good name and moral character, and that by words and actions he caused her to fear attempts would be made on his part to have her deprived of her liberty; by reason of which treatment she was kept in bodily fear, her health seriously affected, her condition rendered intolerable and her life was made burdensome.

The case was tried before the court and a jury and resulted in a verdict in favor of the libelant. A motion for judgment non obstante verdicto was overruled and a judgment was directed to be entered on the verdict, from which the defendant appeals.

After a careful review of the 150 pages of testimony in this case, we are satisfied that the verdict was fully warranted, and was rightly sustained by refusing the defendant’s motion. The effect to be given to the verdict in such a case has been so recently considered in Fay v. Fay, 27 Pa. Superior Ct. 328, that it is not necessary to review the authorities therein cited in vindication of that decision. As was said in that case, it is enough for us to say that we have examined the whole body of evidence in .the light of the general principles relative to this cause for divorce, and whilst it is conflicting in many particulars we are constrained to the conclusion that the testimony of the libelant and her witnesses, if believed by the jury, was sufficient to warrant them in finding the facts essential to a lawful dissolution of the marriage tie. Here our duty ends so far as the evidence is concerned.

The learned trial judge instructed the jury, that they were to be satisfied, by the strength of the evidence, that such personal indignities were put upon her, from time to time, continuously — not occasionally — but continuously, so as to render her condition intolerable and life burdensome, and forced her to remove from her husband’s home. Which thought was repeated several times in the charge. And further, that the intolerable conditions and burdens which compelled her to withdraw, must not be on account of her own faults, her own stubbornness, intellectually or otherwise.

The appellant urges that it was error to submit the case to the jury in the first instance, and second, that the court erred in the general charge. In the two excerpts taken, which represent the first and second assignments of error, the complete thought of the trial judge is not fully set out, and these excerpts, taken in connection with the fair and lucid explanation which precedes and follows them, satisfies us that the charge of the court, taken as a whole, was fair and adequate, and that it was fully understood by the jury.

In an analysis of the testimony it is quite difficult to understand the view of the respondent in regard to his duty as a husband to his wife. From his standpoint, he doubtless felt that his rights as a husband were radically different from the standards imposed upon him by the law and recognized by all the courts of this country. He stated to his wife, “ I can show you a thousand women that would be glad to be in your place and that would know my wishes and do them.” His estimation of his own importance is gathered from his statement to a friend: “I have been approached twice by parties who contemplate the organization of a large bank in Pittsburg, with a capital of three million dollars, and have been solicited to permit my name to be used in connection with the organization as its prospective president,” and to another friend, “After reading 'The Plan of the Ages’ people say, Brother Russel is great! I will go to Allegheny and be near this great man! When they get to Allegheny they find Brother Russel makes no claim to greatness, and merely claims that it is God’s word that is wonderful. He reasons the matter to them as though it were a question in mathematics; and when they hear the answer, they say, 'how simple,”’ and many like expressions of self-esteem pervade his testimony. Letters to friends furnish some idea of his own estimation of his character. He repeatedly states that he is not self-conceited, but meek and not boastful, and writes that two phrenologists had examined his head and assured bim that he was deficient in self-esteem. From his whole testimony, it would seem that he was right in reaching the conclusion stated by him in a letter to his wife, to wit: “I conclude that I am adapted to no one, and that no one is adapted to me, except the Lord. I am thankful that Pie and I understood each other and have confidence in each other. The last month has fastened the conviction upon me much against my will. I am convinced that our difficulty is a growing one generally — that it is a great mistake for strong-minded men and women to marry.”

From this view point his conduct is at least consistent, and he would naturally feel warranted in feeling that any doubt as to the correctness of his views or conclusions, would be due to plots and schemes on the part of his wife; that his wife was a blasphemer, or as he stated it, “One of two things is certain, either my wife has become mentally unbalanced, or else she has become possessed of a most wicked spirit.”

It is apparent from the testimony of each, that each had strong convictions as to the correct interpretation of the Holy Scriptures. They were engaged in the publication of a newspaper called “Zion’s Watch Tower,” and the “Millennial Dawn,” the “Watch Tower Bible,” tracts and pamphlets.

His course of conduct toward his wife evidenced such insistent egotism and extravagant self-praise that it would be manifest to the jury that his conduct towards her was one of continual arrogant domination, that would necessarily render the life of any sensitive Christian woman a burden and make her condition intolerable. The indignities offered to her in treating her as a menial in the presence of servants, intimating that she was of unsound mind, and that she was under the influence of designing and wicked persons fully warranted hex-withdrawal from his house, and justified her fear that he intended to further humiliate her by a threat to resort to legal proceedings to test her sanity. There is not a syllable in the testimony to justify his repeated aspersions on her character or her mental condition, nor does he intimate in any way that there was any cause for difference between them, other than that she did not agree with him in his views of life and methods of conducting their business. He says himself that she is a woman of high intellectual qualities and of perfect moral character. While he denied, in a general way, that he attempted to belittle his wife as she claimed, the general effect of his own testimony is a strong confirmation of her allegations.

In Butler v. Butler, 1 Parsons’ Select Equity Cases, 329, decided in 1849, after a careful review of precedent authorities, Judge King says, “A husband may by a course of humiliating insults and annoyances practiced in various forms which ingenious malice could readily devise, eventually destroy the life or health of his wife, although such conduct may be unaccompanied by violence, positive or threatened. Would a wife have no remedy in such circumstances, under our divorce laws, because actual or threatened personal violence formed no element in such cruelty? The answer to this question seems free from difficulty when the subject is considered with reference to the principles on which the divorce for cruelty are predicated.

The courts intervene to dissolve the marriage bond for the conservation of the life or health of the wife endangered by the treatment of the husband. The cruelty is judged from its effects, not solely from the means by which those effects are produced. To hold absolutely that if a husband avoids positive or threatened personal violence that a wife has no legal protection against any means short of those which he may resort to, and which may destroy her life or health, is to invite such a system of infliction by the indemnity given the wrongdoer. The more rational application of the doctrine of cruelty is to consider a course of marital unkindness with reference to the effect it must necessarily produce on the life or health of the wife, and if it has been such as affect or injure either to regard it as true legal cruelty. This doctrine seems to have been in the view of Sir H. Zeimer Just in Dysart v. Dysart, when he stated that he deduces as an inference from what Sir William Scott ruled in Evans v. Evans, that, “If austerity of temper, petulance of manner, rudeness of language, a want of civil attention, occasional sallies of passion, do threaten bodily harm, they do amount to a legal cruelty.” This idea as expressed axiomatically would be no less than the assertion of this principle; that whatever form marital ill-treatment assumes if a continuity of it involves the life or health of the wife, it is legal cruelty.”

While the early rule as announced in England and in some of the American states, was, that mental suffering, distress or injury, and bodily injury resulting from mental suffering were insufficient to constitute cruelty, yet the modern and better considered cases have repudiated this doctrine as taking too low and sensual a view of the marriage relation, and it is now very generally held, and has always been the rule in Pennsylvania, that any unjustifiable conduct on the part of either the husband or the wife which so grievously wounds the mental feelings of the other, or so utterly destroys the peace of mind of the other as seriously to impair the bodily health or endanger the life of the other, or which utterly destroys the legitimate ends and objects of matrimony constitute cruelty, although no physical or personal violence may be inflicted, or 'even threatened or reasonably apprehended: May v. May, 62 Pa. 206; Jones v. Jones, 66 Pa. 494; McMahen v. McMahen, 186 Pa. 485; Howe v. Howe, 16 Pa. Superior Ct. 193; Schulze v. Schulze, 33 Pa. Superior Ct. 325; Fay v. Fay, 27 Pa. Superior Ct. 328; Barnsdall v. Barnsdall, 171 Pa. 625. To warrant the granting of a divorce on the ground of the conduct on the part of either the husband or wife, as to render the condition of the other party intolerable and life burdensome, where there is no proof of overt bodily harm actually inflicted or threatened, the evidence should be strong and convincing, the course of ill-treatment complained of must have been long continued, and of a serious character. The conditions • exacted by these decisions, have been fully and clearly met by the libelant, and the proof adduced by her on the trial fully warranted the verdict rendered. No error being found in the record the assignments of error are overruled and the judgment is affirmed.