text:
    Shaw v. Shaw, Appellant.

      Divorce-Trial by jury — Evidence—Review.
    Where there is a trial by jury in a divorce case, the appellate court is relieved from the burden of reviewing the evidence with reference ro its credibility. The provision for appeal to a jury implies that its verdict shall determine the facts in the case if there be competent evidence.

      Divorce — Cruel and barbarous treatment — Indignities to the person— Evidence — Act of March 13, 1815, 6 Sm. L. 286, and May 8, 1854, P. L. 644.
    Undér the Act of 'May 8, 1854, P. L. 644, which gives to a husband a right to a divorce for cruel and barbarous treatment, whatever directly tends to show a course of treatment which renders the condition of the libelant intolerable and his life burdensome, is admissible in evidence, and in determining whether there was cruel and barbarous treatment within the meaning of the statute the whole conduct of the wife toward her’ husband during the period of the allegéd ill-treatment should be considered. " • .
    A decree for divorce in favor of a husband on the ground of cruel and barbarous treatment will be sustained where there is evidence that the respondent assaulted the libelant with a dagger and drove him out of the house ; that at another time she threw a valise at him, that she struck him in the face with a ring; that she frequently used profane and obscene language; that she in a number of'instances, sent to him offensive postal cards through the mail; that she exhibited a violent.and quarrelsome disposition; interfered with him in his business; and by her general and continuous course of conduct towards him brought on nervous prostration and inability to carry on his work as an instructor in music.
    Argued Oct. 30, 1907.
    Appeal, No. 115, Oct. T., 1907, by defendant, from judgment of C. P. Lebanon Co., Dec. T., 1904, No. 62, on verdict for libelant in case of W. Warren Shaw v. Helen Shaw.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Libel for divorce. Before Ehrgood, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for libelant. Defendant appealed.

      Error assigned was in submitting the case to the jury.

      April 20, 1908:

      Fred W. Sperling and E. E. McCurdy, of Gobin & McCurdy, with-them H. Bank Bickel, for appellant. —
    The evidence was not sufficient to sustain a decree for divorce: Lloyd v. Lloyd, 2 Woodward, 481; Carter v. Carter, 1 Kulp, 359; Doan v. Doan, 3 Clark, 7; Ottenberg v. Ottenberg, 32 Pa. C. C. Rep. 208; Van Dyke v. Van Dyke, 135 Pa. 459.

      John W. Wescott, with him Walter C.. Grceff and Harry.D. Wescott, for appellee. —
    The case was for the jury: Fay v. Fay, 27 Pa. Superior Ct. 328; Barnsdall v. Barnsdall, 171 Pa. 625; Middleton v. Middleton, 187 Pa. 612; Reed v. Reed, 30 Pa. Superior Ct. 229.
   Opinion by

Henderson, J.,

The questions at issue before the jury in this case involved the charges of (1) desertion, (2) cruel and barbarous treatment and (3) indignities to the person. The jury found for the defendant on the first and for the plaintiff 'on the other two. As there was a trial by jury we are relieved, from the burden of reviewing the evidence with reference to its credibility. The provision for an appeal to a jury.implies .that its verdict shall determine the facts in the case if there be competent evidence: Middleton v. Middleton, 187 Pa.. 612; Fay v. Fay, 27 Pa. Superior Ct. 328. Our only inquiry, is. whether the case should have been submitted to the jury on. the evidence offered by the libelant. In many instances testimony bearing upon the charge of cruel and barbarous .treatment is also relevant under a charge of indignities to the person and such is the case here. The testimony covers the history of the parties from their marriage to the time of the trial and is very voluminous. We have examined it all with care, and are of the opinion that it sustains the action of the court. The plaintiff’s testimony shows acts of physical violence- at different times and a course of conduct which brings it within •the description of cruel and barbarous treatment. There is evidence that the respondent assaulted the plaintiff with a dagger and drove him out of the house; that she threw a valise at him at another time; that she struck him in the face with a ring; that she frequently used profane and obscene language; that she, in a number of instances, sent to him offensive postal cards through the mail; that she exhibited a violent and quarrelsome disposition; interfered with him in his business and by her general and continuous course of conduct toward him brought on nervous prostration and inability to carry on his work. The testimony also shows that she endeavored to prevent him from prosecuting his profession as an instructor in music; that she disparaged his ability in the presence of strangers and humiliated him publicly in various ways. . We do not deem it necessary to recite in detail the story of the matrimonial experience of the' parties. The jury has credited the libelant’s story and has found that he has been subjected to cruel and barbarous treatment and to indignities to the person, such as made his condition intolerable and life burdensome. The parties appeared as witnesses at the trial and the court and jury were best able to determine the truth of their respective allegations. The case was fairly submitted to the jury by the learned trial judge and upon a motion for a new trial the evidence was reviewed and the ruling at the trial adhered to. It was contended then, as in this court, by the appellant’s counsel that the cruel and barbarous treatment which would entitle the libelant to a divorce is only that which endangers life and health. Such is the language of the Act of March 13,1815, 6 Sm. L. 286, which applies to an action brought by a wife against a husband for that cause, but the Act of May 8, 1854, P. L. 644, which gives to a husband a right to a divorce for cruel and barbarous treatment, is in different terms. The latter act allows a divorce to a husband where his wife “shall have, by cruel and barbarous treatment, rendered the condition of her husband intolerable or life burdensome.” It was held in Jones v. Jones, 66 Pa. 494, that the act did not limit cruel and barbarous treatment to acts that endanger life alone. The same ruling was made in Barnsdall v. Barnsdall, 171 Pa. 625, and in Fay v. Fay, 27 Pa. Superior Ct. 328. In the latter case it was said “whatever directly tends to show a course of treatment which renders the condition of the libelant intolerable and his life burdensome is admissible in evidence and in determining whether there was cruel and barbarous treatment within the meaning of the statute the whole conduct of the wife toward her husband during the period of the alleged ill-treatment should be considered.” The court was not in error, therefore, in refusing to affirm the ninth, tenth and eleventh points of the defendant. After an examination of all of the evidence we are constrained to hold that the court was not in error in submitting the case to the jury.

The decree is affirmed.


source: Caselaw Access Project

author: Hendeeson, J.,

license: Public Domain

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

      Habeas corpus — Appeals—Evidence—Extradition.
    An appeal in habeas corpus proceedings is in effect a certiorari, in which the jurisdiction of the appellate court is restricted to an examination of the record. The evidence introduced and the rulings of the judge thereon are not properly for the upper court.

      Extradition — Warrant of arrest — Fugitive from justice — Duty of governor — Criminal law.

    The constitutional provision on the subject of interstate extradition and the act of congress relating thereto are part of the supreme law of the land and of every state. Requisitions and warrants of arrest for alleged fugitives are issued under the laws of the United States. The statute of this state on the subject is in aid, merely, of the proceedings and in no sense inconsistent with the federal statute. Whether the warrant of arrest shall be issued or not is an executive consideration and the duty of the governor is absolute whenever the requisition from the demanding state is presented in due form, with the necessary accompanying papers as required by law, to the governor of the state where the accused has taken refuge. The latter is under obligation to issue a warrant for the surrender of the person accused if he is a fugitive from justice. If the requisition is in proper form he has no authority to determine whether the charge is true. The constitutional provision for extradition is in the nature of a treaty between the states to which the executive of each is bound to give effect.
    Jurisdiction of the court on a writ of habeas corpus in an extradition proceeding does not involve any executive function. It is limited to (a) the identification of the person demanded; (b) an inquiry whether the record shows that a crime was substantially charged against him and (c) whether he is a fugitive from justice.
    Each state has the power unless forbidden by the constitution of the United States to. declare what shall be offenses against her laws, and persons residing in such state are subject to her laws. The words “treason, felony and other crimes,” in sec. 2, article IV of the federal constitution, ■include every offense against the laws of the demanding state without exception as to the nature of the crime. A state may make the desertion of a wife a crime, and a husband guilty of such an act and becoming a fugitive from justice may be arrested in the state to which he has fled, by proper extradition proceedings.
    It is not necessary that the person accused should have fled from the state in which the crime is alleged to have been committed or have left it in apprehension of a prosecution to constitute him a fugitive from justice within the meaning of the federal statute. If, having been within a state, he is accused of having committed while there that which by its laws constitutes a crime and when he is sought to be subjected to criminal . proceeding therefor, he has left its jurisdiction and is found within another state, he is a fugitive from justice. It is not important whether the' accused leaves the state to avoid prosecution or not. His motive does not affect his relation to the law.
    ■ One who leaves a state after the date of the commission of an alleged crime becomes from the time of such leaving, yithin the meaning of the words of the constitution of the United States, a fugitive from justice, and if found in another state must be delivered by the governor of such state to the state whose laws are alleged to have been violated on the production of the the requisite evidence of the indictment or-affldavit certified by the governor of the state from which the accused departed..
    Submitted Oct. 31, 1907.
    Appeal, No. 179, Oct. T., 1907, by defendant, from order of C. P. Blair Co., June T., 1907, No. 108, discharging relator, in case of Commonwealth ex rel. Buell N. Burlingame v. A-. L: Hare, sheriff.
    Before Rice, P. J., Porter, Henderson, Orlady, Head and Beaver, JJ.
    Reversed.
    Writ of habeas corpus. Before Bell, P. J.
    The facts are stated in the opinion of the Superior-Court.

      Error assigned was order discharging the relator.

      R. A. Henderson and J. Banks Kurtz, for appellants. —
    This court-' has held -that its jurisdiction on appeal in habeas corpus proceedings extends only to an examination of the regularity and legality' of the proceedings brought up by certiorari: Thatcher’s Requisition, 18 Pa. Superior Ct. 533; Com. v. Butler, 19 Pa. Superior Ct. 626.
    The right of a state to demand the extradition or rendition by another state of persons who have committed offenses agáinst its laws and have thereafter fled to the other state is founded upon the constitution of the. United States. It is not dependent on interstate comity, courtesy or’contract: Lascelles v. State of Georgia, 148 U. S. 537 (13 Sup. Ct. Repr. 687); Hyatt v. New York, 188 U. S. 691 (23 Sup. Ct. Repr. 456); Com. of Kentucky v. Dennison, 65 U. S. 66; Com. v. Johnston, 12 Pa. C. C. Rep. 263; Ex parte Morgan, 20 Fed. Repr. 298; Ex parte Smith, 3 McLean, 121; In re Fetter, 23 N. J. Law, 311.
    It is questionable whether the states 6ould constitutiorially enter into an agreement or stipulation with each other for the purpose of defining or limiting offenses for which’ fugitives would or should be surrendered: Lascelles v. Georgia, 148 U. S. 537 (13 Sup. Ct. Repr. 687).
    When the requisition of the demanding governor is 'presented to -the executive of the state where the accused’ has taken refuge, together with all the necessary papers as required by law, the latter has no discretion, but is under a positive'obligation to issue his mandate for the arrest and surrender of the person demanded: Kentucky v. Dennison, 65 U. S. 66; Matter v. Clark, 9 Wend. (N. Y.), 212; People v. Brady, 56 N. Y. 182; People v. Pinkerton, 17 Hun (N. Y.), 199; Work v. Corrington, 34 Ohio St. 64; In re Fetter, 23 N. J. Law, 311; Ex parte Swearingen, 13 S. Car. 74; In re Roberts, 24 Fed. Repr. 132; Roberts v. Reilly, 116 U. S. 80 (6 Sup. Ct. Repr. 291); Johnston v. Riley, 13 Ga. 97; In re Voorhees, 32 N. J. Law, 141.
    The learned court below makes the point that no hearing was given the relator before the governor. He is not entitled to a hearing before the governor: State v. Clough, 72 N. H. 178 (55 Atl. Repr. 554); Munsey v. Clough, 196 U. S. 364 (25 Sup. Ct. Repr. 282).
    The -words of the constitution, “treason, felony or other crime" include every offense made punishable by the law of the state in which it was committed, from the highest to the •lowest in the grade of offenses, including misdemeanors and statutory crimes:” Kentucky v. Dennison, 65 U. S. 66; Ex parte Reggel, 114 U. S. 642 (5 Sup. Ct. Repr. 1148); Lacelles v. Georgia, 148 U. S. 537 (13 Sup. Ct. Repr. 687); In re Leary, Fed. Cas. No. 8,162; Morton v. Skinner, 48 Ind. 123; In re Fetter, 23 N. J. Law, 311; In re Voorhees, 32 N. J. Law, 141; Brown’s Case, 112 Mass. 409.
    April 20, 1908:
    The relator is a fugitive from justice: Hyatt v. People, 188 U. S. 691 (23 Sup. Ct. Repr. 456); Roberts v. Reilly, 116 U. S. 80 (6 Sup. Ct. Repr. 291); In re Cook, 49 Fed. Repr. 833; Drinkall v. Spiegell, 36 Atl. Repr. 830; In re Bloch, 87 Fed. Repr. 981.
    • H. A. Davis and Thomas H. Greevy, for appellee. —
    The relator was not a fugitive from justice: Com. v. Hart, 12 Pa. Superior Ct. 605.
    The agreement made in the Interstate Extradition Congress in 1887 is kept by Pennsylvania and other states: In re Greenough, 31 Vt. 279.
    The relator was entitled to a hearing before the governor: Ex parte Reggel, 114 U. S. 642 (5 Sup. Ct. Repr. 1148); Tenn. v. Jackson, 1L. R. A. 370.
    The relator was entitled to the writ of habeas corpus and a hearing by the court: Roberts v. Reilly, 116 U. S. 80 (6 Sup. Ct. Repr. 291); Munsey v. Clough, 196 U. S. 364 (25 Sup. Ct. Repr. 282); Robb v. Connolly, 11 U. S. 624; Ex parte Todd, 47 L. R. A. 566; Com. ex rel. v. Trach, 3 Pa. C. C. Rep. 65.
    The governor had the right to refer the matter to the court’ Kentucky t. Dennison, 65 U. S. 66; State v. Toole, 69 Minn. 104.
   Opinion by

Hendeeson, J.,

Much of the discussion to which our attention is directed in the paper-books of the appellant and appellee is beyond the limits of our legitimate inquiry. The appeal is in effect a certiorari, in which our jurisdiction is 1 estríe ted to an examination of the record. The evidence introduced and the rulings . of the judge thereon are not properly before us: Com. v. McDougall, 203 Pa. 291; Com. ex rel. v. Strickland, 27 Pa. Superior Ct. 309; Thatcher’s Requisition, 18 Pa. Superior Ct. 533. Turning to the record we find that the petition of the relator sets forth the fact that he was arrested on a warrant issued by the governor of the commonwealth, by virtue of a requisition to him addressed by the governor of the state of Illinois, copies of which warrant and requisition are attached to the petition. The charge against him is stated by the petitioner to be desertion or abandonment of his wife and this also ap-. pears from the warrant of arrest and the return of the sheriff to the writ of habeas .corpus. The petitioner admits that he-is the person against whom the proceeding was instituted and-that he was resident in the state of Illinois at or about the time ■ the offense is alleged to have been committed. The remainder of the petition is devoted to a denial of the allegation that he is guilty of the crime charged or that he is a fugitive from justice and the assertion that he did not have a hearing before the governor at the time the warrant of arrest was issued. We have on the record, therefore, the material facts which enable-us to determine the regularity of the proceeding and the legality of the action of the court below. The constitutional provision on the subject of interstate extradition and the act of Congress relating thereto are part of the supreme law of the land and of every state. Requisitions and warrants of arrest for alleged fugitives are issued under the laws of the United States. The statute of this state on the subject is in aid, merely, of the proceeding and in no sense inconsistent with the federal statute. Whether the warrant of arrest shall be issued or not is an executive consideration and the duty of the governor is absolute whenever the requisition from the demanding state is presented in due form, with the necessary accompanying papers as required by law, to the governor of the state where the accused has taken refuge. The latter is under obligation to issue a warrant for the surrender of the person accused, if he be a fugitive from justice.' If the requi- • sition is in proper form he has no authority to determine. whether the charge is true. The constitutional provision for extradition is in the nature of a treaty between the states to which the executive of each is bound to give effect. The jurisdiction of the court on. a writ of habeas corpus does not involve any executive function. It is limited to (a) the identification of the person demanded: (b) an inquiry whether the record shows that a crime was substantially charged against him; (c) whether he is a fugitive from justice: Roberts v. Reilly, 116 U. S. 80; Munsey v. Clough, 196 U. S. 364. The identity of the relator not being questioned we need only consider whether a crime is substantially charged and whether he is a fugitive from justice. That the defendant is indicted for desertion under an act of.the general assembly of the state of Illinois approved May 13, 1903, appears in the, record. This act is, therefore, made punishable as a crime by the law of the state where it is alleged to have been committed. That the constitutional provision covers such a case admits of no doubt. Every act forbidden and made punishable by the law of a state is within its operation. The words “ treason, felony and other crime” in section 2 of article IV. of the Federal Constitution include every offense against the laws of the demanding state without exception as to the nature of the crime: Ex parte Kentucky v. Dennison, 65 U. S. 66; Ex, parte Reggel, 114 U. S. 650; Lascelles v. Georgia, 148 U. S. 537; In re Clark, 9 Wend. 212; Brown’s Case, 112 Mass. 409. Each state has the power, unless forbidden by the constitution of the United States, to declare what shall be offenses against her laws, and persons residing in such state are subject to her laws.

It is not necessary that the person accused should have fled from the state in which the crime is alleged to have been committed or have left it in apprehension of a prosecution to constitute him a fugitive from justice within the meaning of the federal statute. If, having been within a state, he is accused of having committed while there that which by its laws constitutes a crime and, when he is sought to be subjected to criminal proceeding therefor, he has left its jurisdiction and is found within another state he is a fugitive from justice. It is not important whether the accused leaves the-state to avoid prosecution or not. His motive does not affect his relation to the law. One who leaves a state after the date of the commission of an alleged crime becomes from the time of such leaving within the meaning of the words of the constitution of the United States a fugitive from justice and if found in another state must be delivered by the governor of such state to the state whose laws are alleged to have been violated on the production of the requisite evidence of the indictment or affidavit certified by the governor of -the state from which the accused departed: Roberts v. Reilly, 116 U. S. 80; Appleyard v. Mass., 203 U. S. 222. The record brings the relator within the doctrine of these cases. He is accused of a crime in •another state in which he was living at the time the offense was alleged to have been committed. A requisition was issued for his arrest by the governor of that state. He was found within this commonwealth. We must conclude, therefore, that within the meaning of the law he is' a fugitive from justice. It was the duty of the court to remand the relator.

Since the foregoing opinion was written an opinion was handed down by the Supreme Court in the case of Com. ex rel. Richard C. Flower v. the Superintendent of Philadelphia County Prison, 220 Pa. 401, which sustains the conclusions-here reached.

The order directing the relator’s discharge is reversed and it is now ordered That the said Buell N. Burlingame be remanded to the custody of the sheriff of Blair county.


author: Rice, P. J.,

text:
    Perry Township Road.

      Road law — Viewers—Review of evidence — Influencing viewers.

    On an appeal in a road case the evidence not being part of the record cannot be considered by the appellate court. - -
    The action of the lower court in setting aside a report of viewers because the viewers had been informed of the amount of a previous award which had been set aside, will not be reviewed by the appellate court.

      April 20, 1908:

      Appeals — Interlocutory order — Road law.

    An order setting aside a report of viewers because of information improperly given them, is not a final order from which an appeal lies.
    Argued Nov. 14, 1907.
    Appeal, No. 52, Oct. T., 1907, by Jacob S. Adams, from order of Q. S. Berks Co., June T., 1906, No. 1, sustaining exceptions to report of viewers In re Private Road in Perry and Maidencreek Townships, Berks Co., Pa.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Appeal quashed.
    Exceptions to report of viewers.
    The opinion of the Superior Court states the case.

      Error assigned was order sustaining exceptions to report of viewers.

      C. - H. Buhl, with him Ira P. Bothermel, for appellant,
    cited: East Brandywine Twp. Road, 5 Pa. C. C. Rep. 304; Willistown Twp. Road, 5 Pa. C. C. Rep. 303.

      D. Nicholas Schaeffer, for appellee,
    cited: Frankstown Twp. Road, 26 Pa. 472; Cornplanter Twp. Road, 26 Pa. Superior Ct. 20; McConnell’s Mill Road, 32 Pa. 285; Willistown Twp. Road, 5 Pa. C. C. Rep. 303; Lithgow Street, 1 W. N. C. 415; Cambria Street, 75 Pa. 357; Broad Street Road, 7 S. & R. 444.
   Opinion by

Rice, P. J.,

This is an appeal from an order sustaining exceptions to, and setting aside, a report of viewers appointed to lay out a private road. The appeal is by the petitioner for the road. The substance of the exceptions which were sustained is, that the viewers were informed before they made up their report that previous viewers had reported in favor of a road over the same route, and had awarded the exceptant $20.00 damages, and that their report had been set aside by the court. As counsel for appellant well say, in a proceeding of this kind conducted informally before a jury of view in the country, such a fact as is referred to in the exceptions is likely to become generally known and discussed in the neighborhood, and the longer the controversy is continued, the more general will become the knowledge and discussion of it. If every report of viewers must be set aside because the viewers obtain knowledge, no matter how, of the report of previous viewers and the action of the court thereupon, it is quite likely that no report will be obtained that will stand. For this, as well as other obvious reasons, no hard and fast rule of that kind should be laid down. If an interested party brings the fact to the knowledge of the viewers for the purpose of influencing their judgment, the court would be justified in not requiring positive and convincing proof that such misconduct accomplished its purpose. If, on the other hand, no interested party was responsible for bringing the fact to the knowledge of the viewers, the inquiry should be whether there is probable cause for believing that the viewers were influenced by it prejudicially to the exceptant. The proper 'determination of this question depends upon the facts and circumstances disclosed by the evidence in the particular case and not on any conclusive presumption of law. For example, if the evidence should show that the fact was discussed and taken into consideration by the viewers in their deliberations, the court might draw an inference which would be unwarranted in the absence of that or similar evidence. Other illustrations might be given, but it is unnecessary. The point decided is, that the fact alleged in these exceptions may or may not be ground for setting aside the report, depending upon the circumstances. The court is to exercise a sound discretion upon a view of all of them. Our revisory power is much more restricted than that of the quarter sessions, for the reason that the evidence is not part of the record, and although printed in the appellant’s paper-book cannot be considered.: Keller’s Road, 154 Pa. 547; Jefferson Twp. Road, 3 Pa. Superior Ct. 467. Hence it has been declared that the questions whether the viewers misbehaved themselves, whether undue influence was brought to bear on them, and similar questions depending upon the evidence, are peculiarly within the province of the quarter sessions to determine, and its determination will not ordinarily be interfered with: Road in Lower Macungie Twp., 26 Pa. 221; Cornplanter Twp. Road (No. 1), 26 Pa. Superior Ct. 20. We cannot say from the record that this case is an exception to the general rule. The principle is settled by innumerable decisions and is made a rule of court, that upon appeal in road proceedings “the court will not suffer the merits of the case to be entered into, nor reverse the order of the quarter sessions unless for some irregularity apparent on the record, or because the court below have exceeded their jurisdiction, or have erred in their judgment in point of law.” Rule XII.

There is an additional reason why the appellant cannot prevail in this appeal. An appeal does not lie in a road case until there is a final order. An order quashing a report of reviewers for uncertainty is not final, Road in Selin’s Grove, 2 S. & R. 419; nor is an order setting aside a report of viewers for excessive damages a final order which can be reviewed by certiorari, Road in Kiskiminitas Twp., 32 Pa. 9; nor is an order setting aside a report of viewers on the ground that they did not begin their work at the place mentioned in their posted notice, Irwin’s Appeal, 7 Pa. Superior Ct. 354; nor an order discharging a rule to show cause why an appointment of re-reviewers should not be revoked, Com. v. Stephens, 9 Pa. Superior Ct. 218. The reason for the rule is given in Road in Kiskiminitas Twp., 32 Pa. 9, and it is applicable here.

The appeal is quashed.


author: Head, J.,

text:
    Cadwalader, Appellant, v. Springsteen.

      Ground rent — Presumption of payment — Trial by jury — Acts of April 27, 1855, P. L. 368, and June 14, 1897, P. L. 149.
    On the trial of a feigned issue under the Act of June 14, 1897, P. L. 149, to determine whether or not a ground rent had become extinguished by presumption of the law, the action of the trial judge in declaring that the plaintiff had failed to establish his right to recover, and in directing a verdict for defendant in no way impinges upon the plaintiff’s right to have a trial by jury.
    When the conditions prescribed by the Act of April 27, 1855, P. L. 368, are present, the act itself declares that an extinguishment of the ground rent shall be presumed, and it shall “thereafter be irrecoverable.” When the presumption is properly invoked it has every practical effect that a formal written release or extinguishment, if then produced, would have, and the rent jjgharge becomes irrecoverable.
    In a proceeding to determine whether a ground rent had become extinguished by presumption of law, evidence of a mere naked entry on vacant and unoccupied premises for the purpose of making a demand, and the record of a judgment obtained against the original covenantor more than twenty-one years prior to the institution of the proceedings, are not sufficient to warrant a jury in finding that any payment, claim or demand, for or on account of the rent had been made within twenty-one years prior to the inception of the proceedings.
    Argued Oct. 15, 1907.
    Appeals, Nos. 167 and 168, Oct. T., 1907, by plaintiff, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1904, Nos. 3,541 and 3,542, on verdict for defendants in case of John Cadwalader, trustee under the will of Peter McCall, deceased, v. Benjamin R. Springsteen, Covenator, and Deborak S. Kirk, terre-tenant.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Feigned issue under Act of June 14, 1897, P. L. 149, to determine whether a ground rent had been extinguished by presumption of law. Before Brégy, J.
    The opinion of the Superior Court states the case.
    Verdict and judgment for defendants. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendants.

      John Cadwalader, Jr., for appellant. —
    A presumption of law is not necessarily a conclusive presumption: Taylor on Evidence, sec. 71; Best on Evidence, sec. 306; Ash’s Est., 202 Pa. 422; Biddle v. Hooven, 120 Pa. 221; Korn v. Browne, 64 Pa. 55; Clay v. Iseminger, 187 Pa. 108.
    Judgments and other specialties are not barred after twenty-one years. There is simply a disputable presumption of payment: Wallace v. Church; 152 Pa. 258.

      Clarence E. Kuemmerle, with him William D. Neilson and Clinton B. Woodruff, for appellees. —
    The issue to be framed Under the act of 1897 is a real issue to determine as facts whether a ground rent has been extinguished by payment or presumption of law: Dalmas v. Kemble, 215 Pa. 410.
    April 20, 1908:
    The presumption of extinguishment of a ground rent where there has been no payment, etc., for twenty-one years is a •conclusive presumption of law which cannot be rebutted: Biddle v. Hooven, 120 Pa. 221; Wallace v. Fourth U. P. Church, 152 Pa. 258; Clay v. Iseminger, 187 Pa. 108; Clay v. McCreanor, 9 Pa. Superior Ct. 433.
    Going upon the land for the purpose of making a demand is not such a demand as is required by the act of 1855: McCormick v. Connell, 6 S. & R. 151; Rea v. Eagle Transfer Co., 201 Pa. 273.
    The judgments for arrears of the ground rents in these cases are not such judgments as are contemplated by the proviso of the seventh section of the act of 1855.
   Opinion by

Head, J.,

This was a feigned issue under the Act of June 14, 1897, P. L. 149, to determine whether or not a certain ground rent had become extinguished by presumption of law. As prescribed in the act, the person claiming to own the ground rent was made plaintiff, whilst the original covenantor, under a deed made in 1850, and the petitioner, present owner of the premises, became the defendants.

At the conclusion of the trial the learned judge presiding being of the opinion that the plaintiff’s right, under all of the facts which were not in dispute, was barred by the seventh section of the Act of April 27, 1855, P. L. 368, directed a verdict for the defendant, the petitioner. The court in banc later adopted the same view and entered judgment on the verdict, from which judgment this appeal was taken.

Unless the trial judge misconceived the nature and legal effect of the evidence before him or misapprehended the operation of the act of 1855, as applicable to the state of facts disclosed by the record, his act in declaring that the plaintiff had failed to establish his right to recover, and in directing a verdict for the defendant, in no way impinged upon the plaintiff’s right, under the act of 1897, to have a trial by jury. Such action of the court, under proper conditions, is part of a trial by jury and is every, day exhibited in the trial of the oldest forms of common-law actions known to our system of jurisprudence.

Agreeing then, for the moment, that the learned court was correct in the assumption that the record disclosed no -evidence, sufficient to warrant a finding by the jury, that any “payment, claim or demand had been made on account of or for any ground rent for twenty-one years,” or that any “declaration or acknowledgment of the existence thereof had been made within that period by the owner of the premises,” but little room is left for any contention as to the true interpretation of the act or the effect of its application in such a case. The act was passed “to amend certain defects of the law for the more just and safe transmission and secure enjoyment of real and personal estate.”

When it appears that the prescribed conditions are present the act itself declares that an extinguishment of the ground rent shall be presumed and it shall “thereafter be irrecoverable.” The nature of the presumption referred to in the act does not seem to be open to question. When properly invoked it has every practical effect that a formal written release or extinguishment, if then produced, would have and the rent or charge becomes irrecoverable.

In Biddle v. Hooven, 120 Pa. 221, the Supreme Court, speaking through Mr. Justice Paxson, said: “The act of 1855, in its application to ground rents, made this presumption a legal presumption after twenty-one years, which cannot be rebutted.” This language is criticised by the learned counsel for the appellant as having gone farther than the court, in deciding the questions then before it, intended or was required to go. To this we cannot assent. In Wingett’s Appeal, 122 Pa. 486, the court, in the same year, in an opinion by Justice Williams, declared: “It is very clear, therefore, that if the person claiming payment of such charge or lien is able to show neither a claim or demand of payment made by him on the owner of such real estate,' nor a payment upon or an acknowledgment of the existence of such lien within the statutory period, then the act operates to raise a conclusive presumption of the release or extinguishment of the demand, and declares that it shall “thereafter be irrecoverable.” ’

In Wallace v. Fourth U. P. Church, 152 Pa. 258, it is said: “The purpose' of the act of 1855 was to relieve titles and facilitate the sale of real estate. ... If for twenty-one years no payment upon, or acknowledgment of the ground rent can be shown and no demand for payment has been made, the act conclusively presumes a release and extinguishment of the incumbrance by the act of the parties, and declares that the rent shall thereafter be irreco’verable.” To the same effect are Clay v. Iseminger, 187 Pa. 108; Clay v. McCreanor, 9 Pa. Superior Ct. 433.

It remains, then, for us to briefly examine the evidence to ascertain if the rent claimant fairly discharged the burden intended to be imposed on him by the act of 1897 directing that he should be the plaintiff in the proceeding therein provided for. It is not asserted there was any evidence at all tending to show an actual payment of money for or on account of the rent during the statutory period; nor that, during the same period, any demand for such payment was made upon any person alleged to be the ground owner or the agent or representative of such owner.

The record does contain an admission that within twenty-.one years the landlord had been on the premises “for the purpose of making a demand for the rent and that the land is vacant and unoccupied.” It is further admitted, however, by the appellant that “George W. Kirk was the registered owner of the premises in question on May 5, 1870, and that his title was derived from Thomas E. Allen, the former owner, by deed dated December 27, 1862.” There is no evidence of any payment made by or demand upon the registered owneror his heirs and successors in title; of any effort to ascertain the names and residence of these heirs or of those who must have been, during the years, paying the city taxes and discharging the municipal burdens imposed on the land; no posting of notice of any demand upon the property itself or publication of same in any newspaper. Whilst the act of 1855 does not undertake to prescribe the manner in which the demand shall be made, 'we are unable to think its requirements have been met by a mere temporary entry upon vacant land even when it be conceded that such entry was for the purpose of making a demand, had any person been found in possession.

It further appears that in May, 1882, an action was brought by the landlord against the original covenantor to recover “forty half-yearly payments (of ground rent) from July 1, 1862, to January 1, 1882,” and that a judgment in favor of the plaintiff followed, which still stands open and unsatisfied on the record. The significance, in this proceeding, of a judgment to which the ground owner was never a party, depends on the construction to be given to the proviso to the 'seventh section of the act of 1855. That proviso declares that if a claim or demand for the rent, süch as the statute contemplates, were made, the evidence thereof “may be perpetuated by the record of any judgment recovered for such rent,” etc. From this language it would seem to follow that the value to be attached, in the present case, to the record of the judgment would be evidential only. It is evidence that a demand for the rent was made in 1882. But such a demand could be established by any other competent evidence. Suppose it were conceded. It would still not be the demand contemplated by the statute, viz.: one made within twenty-one years before the right was sought to be enforced. If an actual payment of the rent then in arrears had been made in 1882 and nothing had been done since, could it be argued that' the plaintiff’s remedy was unaffected by the act of 1855? If payment itself would not have preserved his claim beyond twenty-one years from the time it was made, how could .such a result follow from a mere demand for payment even when formally made and proven by the most satisfactory evidence?

We cannot, therefore, regard either the naked entry on the premises for the purpose of making a demand, or the record of the judgment obtained in 1882, as sufficient evidence to have warranted the jury in finding that any payment, claim or demand, for or on account of the rent, had been made within twenty-one years prior to the inception of the present proceeding. As a consequence a release or extinguishment of the charge must be presumed and it thus became irrecoverable. The learned court below but followed the language of the statute and the decisions of the appellate courts in so holding and directing a verdict for the defendant. The assignments of error are overruled.

Judgment affirmed.


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    Groff’s Estate.

      Practice, O. C. — Lost record — Review—Opening decree.

    The discretion of the orphans’ court in refusing to open a decree surcharging an executor, will not be reviewed by the appellate court where the ground of the application is the discovery of a paper of record which had been mislaid, and the contents of which would show that the surcharge should not have been made, if it appears that the accountant could easily have discovered the paper if he had made a proper search for it, that he was guilty of inexcusable delay after the decree in making the search, that he subjected the creditors of the estate to the expense and delay incident to an appeal to the Supreme Court, and that even if the decree were opened and the paper admitted, the balance charged against the accountant would not be materially reduced.
    Argued Nov. 14, 1907.
    Appeal, No. 99, Oct. T., 1907, by defendants, from decree of O. C. Lancaster Co., April T., 1905, No. 22, refusing to open a decree In re Estate of Solomon C. Groff, deceased.
    Before Rige, B. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Petition to open a decree surcharging accountant.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was the decree of the court.

      B. F. Davis, with him J. W. Denlinger, for appellants,
    cited: Young’s App., 99 Pa. 74; Parker’s App., 61 Pa. 478.

      W. U. Hensel, with him M. G. Schceffer, for appellees.

      April 20, 1908:
   Opinion by

Rice, P. J.,

This is an appeal by Wayne I. Groff, one of the executors of the will of Solomon C. Groff, deceased, from an order dismissing a rule to show cause why the adjudication and decree touching the matters complained of in the petition of his attorney should not be opened, so that the executors could offer in evidence the original widow’s appraisement and have the errors complained of corrected. We shall refer to this petition hereafter, but a recital, before doing so, of the proceedings in the settlement and distribution of the estate, which preceded its presentation, will aid to a correct understanding of the questions for decision.

Solomon C. Groff, the testator, died on December 18, 1898, and on January 18,1899, the general inventory and appraisement of his estate were filed, which showed assets amounting to $6,219.45, made up of the following items: judgment note of Wayne I. Groff with interest, $3,500; mortgage, $2,600; deposit in bank, $119.45. The widow’s appraisement was filed on the same day and confirmed nisi on February 20, 1899.

In August, 1900, the executors’ first account, and in January, 1906, their final acount, were filed, to both of which exceptions were filed in due season. Amongst the items of credit excepted to were the following: April 1,1899, paid Susan Groff, widow’s exemption, $300; January 12, 1906, paid accountants, compensation, $175; January 12,1906, paid accountants’ claim, extraordinary labor and services rendered in said estate in the matter of litigation against it during six years past, to wit: $500. In due course the accounts and exceptions came on for adjudication and on March 16, 1906, the orphans’ court entered a final decree sustaining the foregoing and other exceptions, overruling others, and adjudging the balance with which the accountants were chargeable to be $8,775.25.

On April 4, 1906, the executors, and on April 7, 1906, the assignee of one of the excepting creditors appealed from the decree to the Supreme Court, and on May 24, 1906, that court affirmed the decree upon the opinion of the orphans’ court. A report of that case will be found in Groff’s Estate, 215 Pa. 586.

The appellants’ paper-book is incomplete, in that the docket entries showing the proceedings prior to the application for the rule under consideration are not printed. But it is stated in appellee’s book, and not denied by the appellant, that on November 19, 1906, a decree of distribution was made, that, exceptions thereto were argued and dismissed, that on February 18, 1907, this adjudication became absolute and an order to pay was made, and that from the final decree no appeal was taken.

On March 11, 1907, a paper purporting to be the petition of the attorneys of the executors, signed by the attorneys, and sworn to by one of them, was presented to the Supreme Court, alleging that on March 4, 1907, the widow’s appraisement, which at the audit was alleged to have been mislaid, concealed or lost, was found, and praying the Supreme Court to open and amend its decree, “so that the accountants and executors can move the court below, and offer in evidence the original widow’s appraisement and have the errors herein complained of corrected, or that your honors take such steps in the matter as may be deemed proper and just in the premises.” An answer was filed by excepting creditors, and on April 3, 1907, the Supreme Court made an order refusing the prayer of the petition. This order was followed by the presentation to the orphans’ court of the petition by which was instituted the particular proceeding now under consideration.

What decree did petitioner pray to have opened? The court in its opinion assumes that it was the decree of distribution only, and concludes that merely to open that would avail nothing to the petitioner, because the decree surcharging him would be left undisturbed. But a reference to the petjtion shows that the matter complained of was the disallowance of the three items of credit above referred to, and the prayer of the petition was that “the adjudication and decree touching the. matters herein complained of, in said Orphans’ Court,” be opened “so that the executors .... can offer in evidence the orignal widow’s appraisement and have the errors complained of corrected, and in the meantime, grant a stay of proceedings in said court and take such other steps in the matter as may be deemed proper and just in the premises.” It would seem, therefore, that the prayer of the petition was intended, and though informal, was broad enough, to include such relief as the petitioner was entitled to. . ■

The next question, in logical order, is as to the power of the. orphans’ court to open the decree, particularly after it had been affirmed by the Supreme Court, final decree of distribution had been made, and the Supreme Court refused to interfere. We pass that question for the present and proceed to. consider whether, assuming that the orphans’ court had the power, it was guilty of abuse of discretion in not exercising it.

It is claimed that if the paper containing the widow’s appraisement had been before the court at the adjudication of the exceptions to the accounts, the reasons given by the court (see 215 Pa. 586) for disallowing the three credit items above referred to would be lacking. Even assuming this to be true, it surely would not preclude the court from adhering to its former decree, if upon reconsideration, it should conclude that it ought to be sustained for other valid reasons. In other words, the matter asked to be corrected is the decree, not the reasons given in support of it; therefore, if the introduction of the neW evidence would not necessarily or probably change the result, the court was right in discharging the rule. One of the grounds upon which the learned judge below discharged the rule was that a fair readjustment would not be to the advantage of the accountants: We have felt warranted, therefore, in examining the accounts and the proceedings and evidence relating thereto, as set forth in the paper-books in the above appeal to the Supreme Court, a copy of which has been furnished to us by appellants’ counsel. This is an informal mode of reviewing the questions for decision, but the appellants have no standing to complain of it, for, without the information gleaned from the Supreme Court paper-book thus furnished to us, the appellants’ paper-book in the present appeal would be wholly inadequate to a proper determination of those questions., From such examination, in connection with the proceedings upon the rule to show cause, we are unable to reach a satisfactory conclusion that the balance charged against the accountants by the decree affirmed by the Supreme Court, would be materially reduced if the decree were opened, the paper admitted in evidence, and the question of the balance chargeable against them reinvestigated. We need not go into an elaborate discussion of this question, for, even if it may be said to be in doubt, the opening of the decree was properly refused for an additional reason.

As early as September, 1900, the accountants knew from the exceptions filed that the $300 payment to the widow was objected to. They must also be presumed to have known the law, and, therefore, that they would be called upon at the audit to meet the question, as to her right to take cash to be derived by them through the conversion of the personal estate, there being no cash on hand at the time of her demand, or, at least not sufficient cash, to satisfy it. See Hunt’s Appeal, 100 Pa. 590. They knew further at the audit of the accounts that the credit claimed was objected to for the additional reason, that the orphans’ court minute showed that “$300 worth of goods and chattels” were claimed and set apart to the widow, and therefore that the payment to her of $300 additional on account of her exemption claim was unauthorized. True, a clerk testified at the audit that he had made search for the original paper and could not find it, but the accountants made no inquiry of him as to the extent and nature of his search, they neither made nor caused to be made any search on their own account at that time, they offered no explanation of the apparent discrepancy between the credits claimed in their account and the orphans’ court minute, and they made no effort to have that record amended. They had as full knowledge then as they have now of the fact that $300 worth of goods and chattels had not been set apart to the widow, and of the importance of either showing that the orphans’ court minute was not correct or having it amended. And yet, seemingly content to rest the case upon that state of the record, they made no effort in any way to clear up the apparent discrepancy until after the first decree had been affirmed by the Supreme Court, and the decree had'been made distributing the depleted and then insolvent estate among the creditors who had waited long for their dues, Having exhausted all other means to have the adjudication as to these items changed, one of the executors then caused such a search to be made for the paper in the clerk’s office, as ought to have been made in the first instance, and as a result the paper, although misplaced, was found without difficulty.

It is to be borne in mind that the petition neither avers error in matter of law apparent upon the face of the record, nor new matter which has arisen since the decree; therefore the opening or review of the decree could not be demanded as matter of right. But a review may be allowed as-a discretionary matter for new proof discovered after the decree, which, by reasonable diligence, could not have been found, nor used before. An application of the latter nature being addressed to the sound discretion of the court, unreasonable delay without excuse is-a circumstance which cannot be ignored. Further, it ought to be shown that there is reasonable ground for believing that the result will be changed. By whatsoever name this proceeding before us may be called, it is governed by these principles. As has been seen, a year was allowed to elapse after the first decree before a search was made for the paper, and in the meantime the creditors were subjected to the expense and delay incident to an appeal to the Supreme Court. Apart from this inexcusable delay after the decree in making the search, the decree now assigned for error was fully justified by the fact that there was an utter failure to show that the fact relied on by the petitioner could not, by the exercise of reasonable diligence, have been discovered, and the evidence thereof produced, before the original decree.

The settlement of this estate has been long delayed, and the expense to which it has been subjected, whether wholly necessary and legitimate or not, has at least been extraordinary.It should not longer be delayed by the executors, and the distributees should not be subjected to still greater expense and to further diminution of their claims, unless valid reasons therefor exist and be clearly shown. Np such case has been presented by the appellants as justly enables them to say that the discretion of the court below was not wisely exercised.

The decree is affirmed at the costs of Wayne I. Groff,.the appellant.


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    Commonwealth v. Gamble, Appellant.

      Criminal law — Adultery—Binding instructions to convict — Failure to give opportunity for full defense — Marriage—Evidence—Presumptions.
    It is only under very exceptional circumstances, if ever, that the court will be justified in giving binding directions to the jury to convict the defendant in a criminal case. Under no circumstances may this be done, without giving him a fair opportunity to present all of his relevant and material testimony, and according to him the constitutional right to be heard by his counsel upon the question.
    By the law of Pennsylvania the status of marriage is reached through contract, deriving its validity from the consent of the parties thereto. There are different modes of proving the fact of marriage, but that it must be proved when it has been put in issue by a plea of not guilty to an indictment charging adultery, before the defendant can be convicted of that offense, is indisputable. It is not necessary to prove a ceremonial marriage in the presence of a civil or religious officer, but in the absence of that and of direct evidence of a marriage per verba de prsesenti, there must be proof of conduct or declarations from which it may be presumed that the status of marriage has been entered into by the mutual consent of the parties.
    On the trial of an indictment for adultery the court cannot charge the jury that the presumption of the prisoners’s innocence is conclusively rebutted by proof of prior cohabitation and reputation of marriage with another woman, than the one referred to in the indictment.
    In such a case where the defendant testifies positively and emphatically, in contradiction of the prosecutrix that there was no marriage between them, ceremonial or otherwise, and that he had never promised to marry her, or agreed to marry her, but admits on cross-examination that at one time he had passed her off as his wife, and introduced her as such at a hotel, it is reversible error for the court to stop the case before the defendant has closed, and against the protests of his counsel, to refuse to hear further testimony, and to direct the jury to convict the prisoner.
    When the relation between a man and a woman living together is illicit in its commencement, it is presumed to continue so until a changed relation is proved. Without proof of subsequent actual marriage it will not be presumed from continued cohabitation.
    Argued Nov. 22, 1907.
    Appeal, No. 96, Oct. T., 1907, by-defendant, from judgment of Q. S. Bedford Co., April T., 1907, No. 6, on verdict of guilty in case of Commonwealth v. Robert E. Gamble. Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, Jj. Reversed.
    Indictment for adultery. Before Woods, P. J.
    Verdict of guilty, direction of the court upon which judgment of sentence was passed. Defendant appealed.

      Error assigned was in directing the jury to convict.

      J. H. Longeneclcer, for appellant. —
    The court has no power to direct a conviction, however clear the evidence may be: Abbott’s Crim. Trial Brief, sec. 691; Kane v. Com., 89 Pa. 522; Com. v. Kay, 14 Pa. Superior Ct. 376; Stewart v. Com., 117 Pa. 378.
    In all criminal cases the defendant has an absolute right to be heard by his counsel in argument to the jury: 2 Ency. of Pleading and Practice, 699; 1 Thompson on Trials, p. 704, sec. 905; Proffatt on Jury Trial, sec. 248; Wharton’s Crim. Pleading and Practice, sec. 811; Cathcart v. Com., 37 Pa. 108, 111. The subject was likewise considered in the civil case of Lee v. Lee, 9 Pa. 169, 174-176.
    The court was entirely mistaken in the statement that the law would presume marriage. If the facts referred to were sufficient, to create a presumption it must necessarily be one of fact, not of law, and therefore for the determination of the jury. The court has no power to ascertain presumptions of fact: Kenley v. Kenley, 2 Yates, 207; Rumpff v. Vichestein, 3 Pitts. Rep. 148; Thomas v. Thomas, 124 Pa. 646; Wayne Twp. v. Porter Twp., 138 Pa. 181; Clark’s Est., 173 Pa. 451.
    It was proved and not denied that the relations of the parties were illicit in their beginning and. continued so for some months. That being an established fact, no inference of marriage could be drawn from their continued cohabitation, but the presumption was that the character of their relations continued as it began: Appeal of Reading Fire Ins. & Trust Co., 113 Pa. 204, 208; Hunt’s App., 86 Pa. 294; Yardley’s Est., 75 Pa. 207; Bicking’s App., 2 Brewster, 202; Com. v. Stump, 53 Pa. 132.
    No printed brief for appellee.

      April 20, 1908:
   Opinion by

Rice, P. J.,

All of the questions that need be discussed on this appeal are raised by the fourth, fifth and sixth assignments of error.

The defendant, when testifying in his own behalf, admitted the alleged sexual intercourse between himself and Etta Crissman, but denied that it was adulterous, as alleged in the indictment, and testified that prior thereto they were united in marriage on November 14, 1906, at Baltimore, Maryland, by a minister, whose certificate he produced and put in evidence. Therefore, as the case stood when the introduction of evidence was stopped, and the remark, ruling and instruction complained of in these assignments were made and given, the only essential to a conviction that was in dispute was the alleged marriage of the defendant to the prosecutrix prior to November 14, 1906.

As to this disputed matter, the commonwealth adduced evidence of two kinds: first, the testimony of the prosecutrix that they were united in marriage by formal ceremony conducted by a minister in the state of Indiana, on August 13, 1898;.second, the testimony of other witnesses to the effect, that the parties subsequently cohabited at divers places outside of this state and at Bedford in this state, as if they were husband and wife, and that the defendant on several occasions spoke of the prosecutrix, and introduced her to others, as his wife. The defendant, on the other hand, testified positively and emphatically, that no marriage ceremony, or pretended marriage ceremony between him and the prosecutrix was performed at the time and place testified to by her,. or at any other time or place; that they never were married; that he never promised to marry her or agreed to a marriage with her. Not only his direct testimony as to the beginning of their relation, but his testimony as to acts,, declarations and conduct during the period over which their cohabitation extended, which affected the prosecutrix as well' as himself, tended, if believed, to support his contention that the relation between them was meretricious in its inception and continued to be so to the end.

If the case had rested exclusively upon the testimony of the commonwealth and the defendant above referred to, no one would contend that the court would have been warranted in declaring as matter of law that a valid marriage between the defendant and the prosecutrix was conclusively established by uncontroverted evidence. But at the end of the defendant’s cross-examination he admitted, in answer to questions put by the commonwealth’s counsel, that he had “passed off” the prosecutrix as his wife, that he had introduced her as his wife to those in charge of the hotel in Bedford, where they lodged and boarded from June to September, 1906, and had so introduced her and spoken of her to others. The court then asked the following question: -“Did you live with her while you were here in Bedford as yoúr wife, and so impress the people with it by the way you lived?” To which he replied: “I can answer that question by saying yes, with a definition.” Being asked by the court to give the “definition,” he replied: “Under the threats, Judge.” Thereupon the court said: “This case has had wide enough duration, and we will instruct the jury to bring in a verdict of guilty.” Counsel for defendant interposed a request to be heard before any further action was taken. To which the court responded: “The court has come to the conclusion that this man cannot come and live among the people and pass a woman among them as his wife. The law would not recognize that and if you want to file objection to my ruling you may do so.” The counsel persisted in his demand to be heard, and amongst other things said: “We have testimony which will show clearly and beyond a question that he could not be convicted — .” The court would not permit him to proceed further, but at once charged the jury as set forth in the fifth assignment of error, concluding with a direction to bring in a verdict of guilty. Immediately thereafter, and before verdict, counsel objected to the instructions; repeated his statement that the defendant had not rested his case but had other material evidence to offer; stated the nature of this additional evidence which he had been prevented by the action of the court from offering; and requested the court to open the case, and hear it. The ruling of the court was: “Request is refused. Grant an exception to the defendant and take the verdict.” This ruling and the matters pertaining to it are more fully set forth in the sixth assignment of error.

The foregoing recital of the proceedings on the trial shows that the court committed grievous error in arresting the introduction of evidence before the defendant rested. To assume, as the court must have done, that the defendant’s representations above referred to, and his testimony that he had made them, so conclusively established the fact of marriage that the result of the trial could not be affected by any further evidence that might be offered was wholly unwarranted in law as we shall presently show. Nor was it warranted in fact, for as appears by the sixth assignment of error the defendant had other relevant and material evidence which he was prevented from ever offering until after binding direction to convict had been given. This mode of procedure cannot be approved; neither can it be said that it was harmless error. It is only under very exceptional circumstances, if ever, that the court will be justified in giving binding direction to the jury to convict the defendant in a criminal case. Under no circumstances may' this be done, without giving him a fair opportunity to present all of his relevant and material testimony, and according to him the constitutional right to be heard by his counsel upon the question.

But apart from the irregularities upon which we have commented, the judgment must be reversed for the equally substantial reason that the instructions to the jury were erroneous under the evidence that was admitted. By the law of Pennsylvania the status of marriage is reached through contract, deriving its validity from the consent of the parties thereto. There are different modes of proving the fact of marriage, but that it must be proved when it has been put in issue by a plea of not guilty to an indictment charging adultery, before the defendant can be convicted of that offense, is indisputable. It is not necessary to prove a ceremonial marriage in the presence of a civil or religious officer, but in the absence of that and of direct evidence of a marriage per verba de prsesenti, there must be proof of conduct or declarations from which it may be presumed that the status of marriage has been entered into by the mutual consent of the parties. Cohabitation, ostensibly as husband and wife, and in such a way as to create the reputation of being married, are facts from which the fact of marriage may be presumed in a civil case. -“The reason is,” says a learned writer, “that such is the common order of society, and that if the parties were not what they thus hold themselves out as being, they would be living in the constant violation of decency and of law:” 1 Bishop, Marriage, Divorce and Separation, sec. 959. But neither cohabitation nor reputation of marriage, is marriage. When conjoined they are evidence from which a presumption of marriage arises, but the presumption arising from these facts may always be rebutted, and wholly disappears in the face of proof that no marriage in fact had taken place: Yardley’s Estate, 75 Pa. 207; Hunt’s Appeal, 86 Pa. 294; Appeal of Reading Fire Insurance and Trust Co., 113 Pa. 204; Grimm’s Estate, 131 Pa. 199; Commonwealth v. Haylow, 17 Pa. Superior Ct. 541. We do not say that even in a criminal case the jury may not infer the fact of marriage from circumstantial evidence. Perhaps a case might arise wherein the cohabitation, reputation and attendant circumstances would so strongly and convincingly show that fact as to warrant the jury in 'finding that the presumption in favor of the defendant’s innocence of the adulterous intercourse charged in the indictment had been overcome. But we can conceive of no criminal case wherein it would be within the province of the court to charge the jury that the latter presumption was conclusively rebutted by proof of prior cohabitation, and reputation of marriage, with another woman. To conclusively presume as matter of law from the circumstances, that the relation between the defendant and the prosecutrix was innocent, in order to rebut the presumption of the innocence of his subsequent relation with Etta Crissman under an ostensible marriage, would carry the doctrine of presumption of marriage far beyond the principle upon which it is founded and all of the adjudicated criminal cases in which that principle has been invoked. “ For here presumption rebuts presumption, and here it is impossible that a presumed innocence shall be adequate proof of alleged guilt. Therefore, in all actions of this sort [criminal prosecution for polygamy, for incest, for adultery, and some other offenses], and in all others in .which presumption thus conflicts with presumption, resort must be had to evidence of some other class. And the party setting up the marriage may select such other class as he can render practically available. It may be circumstantial or direct, - or it may consist of confession, or it may be partly of one sort and partly of another. This is termed, in law phrase, proving a marriage in fact, or a fact of marriage:” 1 Bishop, Marriage, Divorce and Separation, sec. 106. See also 19 Am. & Eng. Ency. of Law, 1203. In a criminal case there can be ■no conclusive legal presumption of marriage from reputation and cohabitation where such presumption is in conflict with the prima facie presumption of the defendant’s innocence of the offense charged in the indictment. But in the present case the defense did not rest solely upon the presumption of innocence,- but was supported by evidence which, if believed by the jury, would, even in a civil case, have rebutted the presumption of marriage arising from cohabitation and reputation. It was not for the court to say that this presumption must prevail over the positive testimony of the defendant that no marriage, ceremonial or otherwise, was ever contracted between him and the prosecutrix. Further, if defendant is to be believed, the relation between them was meretricious in the beginning of the cohabitation, and according to the great •weight of authority, the continuance of such cohabitation is presumed to be illicit, until there is satisfactory proof of a formal marriage, or of facts showing that the parties by mutual consent have changed the character of the relation: Hunt’s Appeal, 86 Pa. 294; Appeal of Reading Fire Ins. and Trust Co., 113 Pa. 204; Grimm’s Estate, 131 Pa. 199. Applying this principle to the testimony in the present case it would have been erroneous to instruct the jury as matter of law, that, even though the • relation between them was meretricious in the beginning, a subsequent marriage in fact was conclusively established by the evidence as to their subsequent conduct.

• Notwithstanding the unfortunate expression in the charge, “It makes no difference in the eyes of the law whether she [the prosecutrix] is his wife or not,” we assume that the court did not mean precisely that, but only that by the defendant’s own admission she was his wife. But the defendant’s admissions upon the witness stand that during the period,of their cohabitation in Bedford he had “passed off” the prosecutrix as his wife — had represented to many persons that she was his wife — were not tantamount to his testifying that she was his wife. Nor did the representations he admitted he had made estop him upon the ground of public policy, ,or any other ground, to allege the truth when he was put upon trial for adultery. He was not indicted for imposing on the public; and while his unsworn admissions, express or implied, that the prosecutrix was his.wife, could be put in evidence against him, and the jury could find therefrom the fact.of marriage— Forney v. Hallacher, 8 S. & R. 159 — they were but evidence; they did not create an estoppel. Speaking of this subject, Judge King said: “I consider that confessions and acknowledgments of a prior marriage are only evidence of the fact; that these confessions and acknowledgments derive their force from the time, manner, and circumstances under which they are made, and that connected with these, they may exhibit the most conclusive or the weakest testimony which can be offered of the fact. It is for intelligent jurors,'aided by experienced courts, to weigh and discriminate their relative forces:” Commonwealth v. Murtagh, 1 Ash. 272. See also Commonwealth v. Haylow, 17 Pa. Superior Ct. 541. The defendant, having testified that no marriage, ceremonial or otherwise/ had ever been contracted between him and the prosecutrix, had a right to demand that the question of his veracity in so testifying be passed upon by the jury before he be condemned.

Judgment reversed and venire facias de novo awarded.


text:
    Conrad, Appellant, v. Conrad.

      Equity — Findings of fact — Evidence—Review.
    The findings of fact by the trial judge in an equity case, if supported by competent, and, if believed, sufficient testimony, will not be reversed by the appellate court in the absence of manifest error.

      Decedents’ estates — Family settlement — Uncle and nephew — Confidential relation.

    Where an uncle and nephew who are the sole next of kin and heirs at law of a woman who is the mother of one of them, and the grandmother of the other, enter into an agreement in writing to distribute the estate of the decedent in accordance with an unsigned paper purporting to be a will of decedent, and agree in the paper that the uncle shall take out letters of administration, and the nephew knows at the time of the agreement that he would only get one-sixth of the estate under it, while he would get one-half under the intestate laws, and there is no evidence of fraud in the transaction, the nephew has no standing thereafter in a court of equity to have the agreement revoked and canceled.
    In such a case the fact that under the agreement, following the unsigned will, certain moneys were made payable to the daughters of the uncle, is immaterial.
    A provision in the agreement that the uncle shall take to himself absolutely as his own property a mortgage particularly described, and execute such transfers as are necessary to ensure the same to him individually, is not executory in character at the time of the filing of the bill, if it appears that at the date of the bill the uncle had physical possession of the mortgage.
    Argued Dec. 5,1907.
    Appeal, No. 68, Oct. T., 1907, by plaintiff, from decree of C. P. Montgomery Co., March T., 1906, No. 1, dismissing bill in equity in case of Alvah F. Conrad v. Thomas C. Conrad.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Bill'in equity to cancel an agreement in writing.
    From the record it appeared that the agreement was as follows:
    "Whereas Mary H. Thomas, late of No. 804,DeKalb street, Norristown, Pa., died January 31st, A. D. 1906, intestate, leaving surviving as her next of kin, a son, Thomas C. Conrad, and a grandson, Alvah F. Conrad, both of full age.
    “And whereas, the said decedent, with the knowledge of her family, had certain instructions with regard to the distribution of her estate, which her heirs at law are desirous of carrying out.
    “Now, in consideration of the premises, and as a family agreement in said estate, and for the purpose of controlling and directing the distribution thereof, it is hereby agreed,
    “ 1st, That Thomas C. Conrad shall take out letters of administration on said estate.
    “ 2d, That said administrator shall not inventory or account for the household furniture, wearing apparel or jewelry of the decedent, but shall deliver to Alvah F. Conrad the old dressing table with drawers, and distribute the balance among his three children and their mother.
    “ 3d, That said administrator shall take to himself absolutely as his own property, the Hanley mortgage of $1000.00, and execute such transfers as are necessary to assure the same to him individually.
    “ 4th, That said administrator shall pay the debts of the decedent, and the expenses of administration, account and settlement, and out of the net balance due the estate, shall take and pay the following sums, to wit:
    To Frances E. Clemmer...................... $150 00
    To Alvah F. Conrad......................... 150 00
    To himself in trust for Ethel S. Conrad.......... 150 00
    To himself in trust for Belle T. Conrad.......... 150 00
    To Alvah F. Conrad on his executing a written promise to pay to Ruth Ann' Hamilton, One 50-100 Dollars per annum, during’her life...... 25 00 .
    To himself on his executing a written promise to pay Ruth Anna Hamilton Four 5-100 Dollars per annum during her life................... 75 00
    “Note: On the death of Ruth Anna Hamilton he is to pay Twenty-five Dollars to each of his said three children.
    “ 5th, The balance remaining after -the payment of these sums is to be equally divided between the said Thomas C. Conrad and said Alvah F. Conrad.

      “Witness our hands and seals this sixth day of February. A. D. 1906.
    “Thomas C. Conrad. (Seal.)
    “Alvah F. Conrad. (Seal.)
    “ Signed, sealed and delivered in presence of us:
    “Henry Freedley.”
    Swartz, P. J., filed the following opinion:
    FINDINGS OF FACTS.
    1. Mary H. Thomas was the mother of Thomas C. Conrad and grandmother of Alvah F. Conrad. Her next of kin are the said Thomas C. Conrad and the said Alvah F. Conrad. Frances, Belle and Ethel are the children of Thomas C. Conrad. Alvah F. is the only child of Frances H. Conrad, deceased. Under the intestate laws the said Thomas C. Conrad and Alvah F. Conrad would each take one-half of the estate of the said Mary H. Thomas, déceased.
    2. Ethel and Belle are minors and their father was appointed guardian ad litem for them.
    3. Alvah F. Conrad lived with his grandmother. He came to her when he was nine years old and he is now twenty-four. She supported him for eleven years.
    4. On the day of Mrs. Thomas’s death a paper was found in her desk and in her own handwriting disposing of her property. At the head of the paper she wrote the words, “My Will.” To her son Thomas she gave a mortgage of $1,000 and divided $600 equally among her four grandchildren, Frances, Belle, Ethel and Alvah. She made other bequests of household goods and gave to her sister the income from $100 for life, at her death the principal to the four grandchildren. She failed to sign the paper. The estate consists of personalty, and its appraised value according to the inventory filed is $2,300..
    5. Mrs. Thomas died on January 31,1906, and on February 6 following, Thomas C. Conrad and Alvah F. Conrad took the unsigned paper to the office of Henry Freedley, Esq., a member of this bar. They were accompanied by the brother of the decedent. Mr. Freedley had been counsel for Mrs. Thomas for some years. Both Alvah and his uncle, Thomas C., inquired of Mr. Freedley whether the paper could be probated as the will of Mrs. Thomas. He replied that the paper was of no avail as a will, because of the absence of the signature. Both expressed regret and a search was then instituted for a will at the Penn Trust Company and at the office of Judge Solly, who had acted for Mrs. Thomas in some matters prior to his elevation to the bench. No will was found.
    6. Mr. Freedley explained to the parties that inasmuch as they were the only parties interested and as there were no debts they could agree to a distribution of the estate in accordance with the terms of the unsigned paper, but that this must be done through an administration. Both parties readily assented to this proposition and the paper in controversy was then signed. The agreement embodied all the provisions of the unsigned paper and concluded with the clause that any balance remaining after the payment of the sums named shall be divided equally between the said Thomas C. Conrad and the said Alvah F. Conrad.
    7. The agreement was carefully read by both parties before their signatures were attached. Alvah F. knew at the time he signed the paper that under the intestate laws he was entitled to one full half of his grandmother’s estate. Mr. Freedley so explained the law to him, and between the time of the explanation and the actual signing of the paper Alvah F. stated at the family dinner table that he supposed his grandmother gave his uncle the mortgage to balance up for the many years she had maintained him, the said Alvah. At the time of the signing of the agreement Mr. Feedley made a calculation to determine the balance that would be left after the provisions of the unsigned will were satisfied. Alvah F. was again informed that he and his uncle under the law shared this balance equally.
    8. There is no evidence of any confidential relationship existing between Alvah F. and his uncle, nor is there any evidence of fraud or undue influence in obtaining the signatures of Alva F. to the paper he now seeks to set .aside. He is an intelligent young man and signed the paper because it was his desire to respect the wishes of his grandmother as expressed in the unsigned paper found in her dressing table, and because he considered her distribution fair and just.
    9. Alvah F. received no pecuniary consideration for his signature to the paper. He expressed no dissatisfaction with the agreement before this bill was filed, but it is not shown that Thomas C. Conrad did anything during the month and one half in pursuance of the agreement that would be prejudicial or detrimental to him should the paper now be canceled as prayed for in the bill.
    10. The agreement sets forth that the parties were desirous to carry out the distribution of the estate in accordance with the instructions of Mrs. Thomas. The agreement is under seal. It purports to be a family agreement to control the distribution of the estate.
    11. The agreement provides that Thomas C. Conrad shall take to himself absolutely as his own property the Hanley mortgage of $1,000 and execute such transfers as are necessary to assure the same to himself individually. By a previous clause in the agreement Thomas C. Conrad was to be the administrator. He did so administer and took possession of the assets of the estate. The Hanley mortgage was taken to Mr. Freedley, it was handed to him by Thomas C. Conrad for collection.
    CONCLUSIONS OP LAW.
    1. Under our findings of facts the paper cannot be set aside or canceled upon the ground that the plaintiff was ignorant of his rights at the time he signed the agreement, nor can it be set aside upon the allegation of fraud or undue influence because there was no evidence of their existence.
    2. The kinship of uncle and nephew does not of itself constitute a confidential relationship; there must be some evidence of trust and confidence before a confidential relationship arises between them.
    3. As Alvah F. Conrad fully understood his rights and the effect of the transfer of his interest in the Hanley mortgage, equity will not disturb the executed agreement.' The mortgage was fully delivered in accordance with the provisions of the agreement.
    4. The sealed instrument having been made with the intent to carry out the wishes of Mrs. Thomas as to the disposition of her property and the plaintiff having signed the same not only because he believed it expressed his grandmother’s desire, but also because he considered the disposition fair and just to his uncle, equity will not relieve him from doing that which he agreed to and that which in good conscience he ought to do.
    5. The estate had vested upon the death of Mrs. Thomas. Alvah F. Conrad had more than an expectancy; he was an owner and could dispose of his property as he saw fit, by gift or otherwise, uninduced by any pecuniary consideration. His transfer is beyond the power of revocation because the consideration was sufficient to support it even so far as it concerned the shares made payable to the nieces.
    6. The bill should be dismissed at the costs of the plaintiff.
    ARGUMENT IN SUPPORT OF OUR FINDINGS AND CONCLUSIONS.
    We are satisfied that Alvah F. Conrad fully understood his rights when he signed and sealed the agreement. His rights were explained to him by counsel. His conversation at the dinner table shows that he understood what he was doing. His uncle heard the explanation at Mr. Freedley’s office and the calculation exhibited to Alvah showing the distribution of the balance of the estate into two equal shares also conveyed to a man of his intelligence a true knowledge of his rights under the intestate laws. He not only knew his rights, but he was anxious to see his grandmother’s estate distributed according to what he believed was her wishes and expressed intent. He also recognized the justice and equity of her distribution of the estate. He knew that he had for years enjoyed her beneficence in the support and maintenance she furnished him. No doubt outside influence induced him to recall the act which his own judgment approved at the time the paper was executed.
    There is no evidence of undue influence or that any fiduciary or confidential relationship existed at the time the paper was signed.

      The Hanley mortgage was in the possession of Thomas C. Conrad on the very day the agreement was made. He administered and then passed the mortgage to counsel for collection. There could be no purpose in handing the mortgage to Mr. Freedley' other than a desire to recover the proceeds for himself.' The agreement provided that Thomas C. Conrad should take this mortgage to himself absolutely as his own property. When he had possession of the paper he held it as his individual property and not as a part of the estate of Mrs. Thomas for administration. The transfer was as fully executed as the existing conditions made it possible. There was a delivery of the paper according to the terms of the agreement. All parties in interest may' divide the property of an intestate without administration; the property passes to those legally entitled at the death of the intestate, subject to the claims of creditors: Roberts v. Messinger, 26 W. N. C. 70 (Supreme Court case). .If they may divide the whole estate without administration, it follows that they may dispose of any part thereof in the same way. The delivery was therefore complete so far as the Hanley mortgage is concerned. Whether the agreement, so far as this mortgage is concerned, be termed a gift or assignment of family settlement, it was fully executed before the bill in equity was filed: Delamater’s Estate, 1 Wharton, 362.
    This instrument does not, as counsel for the plaintiff argues, transfer an expectancy. If it did it would require an actual consideration to support it: Lenneg’s Estate, 182 Pa. 485. Alvah F. Conrad and his uncle were the owners of all the assets óf the estate at the time the agreement was signed. No one without their consent could take from them that which the law vested in them upon the death of Mrs. Thomas. They held this title subject to the claims of creditors alone. There are no creditors so far as there is any testimony before us. It is conceded that at the time of the execution of the paper the two persons owned all the estate; that there were no debts of the decedent. “The perfect right of a proprietor to divest himself of his estate by way of gift uninduced by pecuniary consideration is among those which do not admit of question, and when such a gift is executed or otherwise fixed in the beneficiary, either by the direct conveyance of an estate or the creation of an use, it is beyond the power of the donor or his representative to revoke it: ” Rynd v. Baker, 193 Pa. 486.
    We are of opinion that equity will not interfere to revoke any part of the agreement even as to such parts that may still be considered executory. There is á marked difference between an application to the chancellor to revoke or cancel a contract and an application to aid in its execution. He may refuse to execute and yet decline to revoke. If Mrs. Thomas by accident failed to sign the paper headed “my will” or failed by accident to carry out her purpose to do justice to her son in the distribution of her estate and Alvah from a settled conviction signed the paper to do for his uncle what his grandmother failed by accident to do, and if his purpose was to repair the wrong resulting from intestacy then the moral obligation cast upon him would be a consideration to support even an executory agreement: Delamater’s Estate, 1 Wharton, 362. At least equity will not help him to escape from the great obligation he had assumed with full knowledge and without any fraud, mistake or undue influence. We think the same principle is recognized in Hart’s Estate (No. 3), 203 Pa. 492. In Lennig’s Estate, 182 Pa. 485, an agreement by the heirs to change the distribution of the estate divided by the testator was defeated because the agreement was executed before the testator died and was an attempt on the part of the children to dispose of an expectancy, something that they did not own; this could not be sustained in the absence of a valuable consideration. The court said: “If the paper could be sustained as a gift it would answer the purpose, but that cannot be, because the thing given had no existence and as a gift under all the authorities, it cannot be sustained.” Alvah F. Conrad did have something to give because he and his uncle owned the estate of Mrs. Thomas upon her death. In Mechling’s Appeal, 2 Grant, 157, the heir prospectively agreed to release and did so in ignorance of the most material facts in the case, and the court refused to sustain the agreement. In the case before us there is an express direction to pay to each of the nieces $150, and the administrator who had the custody of the funds is directed to make the payment. It is the transfer or assignment of an existing fund in which Alvah F. Conrad had a present interest. Nothing remained to be done by him to give to the nieces title to the fund: Lambe v. Orton, 1 Drew. & Sm. 125, 29 L. J. ch. 319.
    It is competent for the devisees and legatees under a will to bind themselves by an agreement to destroy the will and to distribute the estate under the intestate laws: Phillips v. Phillips, 8 Watts, 195. Why is not the converse allowable? The principle involved is the same where all the heirs agree to avoid intestacy and to distribute the estate according to their ideas of justice and fairness among themselves, and according to the wishes of the decedent as expressed by her.
    While the agreement may not in strictness be termed a family agreement or settlement, still it has some of the features that belong to these favored settlements. One purpose is to preserve harmony among the members of the family. Surely this agreement had in view that purpose. To refuse to divide the estate in accordance with the written request of the decedent would certainly tend to estrange the parties and bring about discord. If Alvah had taken one full half of the estate in addition to benefits already received from his grandmother, his uncle, no doubt, as well as his children, would have regarded such act as grasping and unjust to themselves.
    The parties in their agreement set forth that the paper was executed as a “family agreement.” If they designated the contract by that name we do not see why the court should altogether overlook or disregard their interpretation of the contract. Their motive in making the paper must have been known to themselves, while we can do no more than draw an inference as to these motives.
    A man may transfer his property without valuable consideration by acts that amount in law to a conveyance and assignment of the property and then completely divest himself of the legal ownership; in such case the person who by those acts acquires the property takes it beneficially or in trust as the case may be: Smith’s Estate, 144 Pa. 428. By the agreement the uncle was made the custodian of the funds payable to the nieces. He took possession of the same and still holds them in trust to pay over the same as directed by the plaintiff.
    April 20, 1908:
    If, however, the agreement so far. as it concerns the nieces is executory and the motive which induced the plaintiff to sign it do not constitute a sufficient consideration to support it, still equity cannot order the cancellation of the paper. In the absence of fraud, accident or mistake equity will not interfere. The paper is just what the plaintiff intended it to be under the full understanding of his rights and interests in the estate. The orphans’ court is the proper tribunal to determine what effect it shall have in the distribution of the estate of Mary H. Thomas.
    And now, July 2, 1906, the prothonotary will enter a decree nisi dismissing the bill at the cost of the plaintiff and unless exceptions are filed to our findings and conclusions as required by the equity rule he will enter a final decree accordingly as of course. ' '

      Error assigned amongst others was decree dismissing the bill.

      Edwin S. Nyce, for appellant. —
    The agreement in this case is almost similar to the one in Mechling’s Appeal, 2 Grant, 157, which was declared executory. See also Pringle v. Pringle, 59 Pa. 281; Bayler v. Com., 40 Pa. 37; Lennig’s Estate, 182 Pa. 485.
    An executory contract, without consideration, is not enforceable and is revocable: Lewis’s Estate, 21 Pa. Superior Ct. 393; Mechling’s App., 2 Grant, 157; Lennig’s Estate, 182 Pa. 485; Davidson v. Little, 22 Pa. 245; Smith’s Estate, 144 Pa. 428.

      Henry Freedley, for appellees,
    cited: Smith’s Estate, 144 Pa. 428; Wagoner’s Estate, 174 Pa. 558.
   Opinion by

Rice, P. J.,

This and the succeeding case may be considered together. The first was a suit in equity brought to obtain cancellation of a certain agreement between the two heirs of the estate of Mary H. Thomas, which after a full trial upon the merits resulted in a decree dismissing the bill. The second was an adjudication in the orphans’ court of the estate of Mary H. Thomas, in which the same agreement was set up by the appellees and held by the court to control the distribution. Alvah F. Conrad is the appellant in both cases.

In the appeal in the equity case the first five assignments of error relate to findings upon questions of fact involving conflicting testimony. It is argued upon the first assignment that there was no competent evidence to support the finding therein recited. We cannot agree with this contention. The testimony of Thomas C. Conrad and of,Mrs. Clemmer, if believed, taken in connection with the plaintiff’s admission upon cross-examination that he had lived with his grandmother from the time his father died, was sufficient to warrant the finding. It is suggested fúrther that, inasmuch as in sustaining the objection of the plaintiff’s counsel to a question put to the plaintiff ■upon cross-examination as to his having been supported by his grandmother the trial judge stated that he did not think that was material, the plaintiff was not called upon to rebut the testimony of the defendant upon that subject subsequently given without objection, and therefore no finding should have been based thereon. But we think, if error was committed, •it was in sustaining the objection above referred to of plaintiff’s counsel, not in receiving, and basing a. finding •upon, the subsequent testimony of the defendants. This' was ■competent testimony, and the judge had said nothing in his •former ruling which would have precluded him from receiving •and considering it, even if it had been objected to.

The other findings of fact are supported by competent and, if believed, sufficient testimony. The trial judge had better opportunity than we have to 'judge of the credibility of the witnesses. Upon full consideration of all of the testimony and of the argument of appellant’s counsel in support of his contention, we are unable to say that any of the findings is not in accordance with the fair preponderance of the testimony and the-legitimate- inferences of fact deducible therefrom. Therefore, applying the well-settled and familiar rule upon the subject, these findings must be accepted, as embracing the facts of the case. This being so the conclusion of the learned judge that a case was not made out in which a court of equity would cancel the agreement clearly and logically follows.

We are of the opinion also that under the facts found by him he was right in his conclusion that the agreement, so far as the Hanley mortgage is concerned, was not to be treated as executory at the time the bill in equity was filed; in other words, that the transfer of the mortgage to Thomas C. Conrad, which by the agreement he was to take to himself absolutely as his own property, was as fully executed, as “was necessary” to adopt the words of the agreement, “ to assure the same to him individually.”

As to the provision of the agreement in favor of the plaintiff’s nieces there is more room for argument. But even as to that provision, we are not convinced that the court erred in concluding that the agreement was “beyond the power of revocation, because the consideration was sufficient to support it even so far as it concerned the shares made payable to the nieces.” This conclusion is supported by an exhaustive and well-considered opinion of the learned trial judge, in which the very material distinctions between this case and Lennig’s Est., 182 Pa. '485, and Mechling’s Appeal, 2 Grant, 157, upon which the appellant’s counsel relies, are pointed out. With regard to Mechling’s Appeal, which comes more nearly to the present case than any other which has been cited, it should be observed, that the agreement therein set up was made between the administrator after his appointment, and when there was a relation of trust and confidence between him and the other party to the agreement, not as here, where by the very terms of the agreement the defendant took upon himself the responsibility of administration, and had proceeded with his duties in that regard and in regard of the execution of the other stipulations before the bill in equity was filed. That we have not misinterpreted that decision is apparent from the following quotation from the opinion of Justice Read, “ Such an arrangement between a trustee and a cestui que trust, could not be sustained for a moment, and its invalidity vitally affects the voluntary direction to pay to the brother and sisters of her son, given in palpable ignorance of the extent and value of her interest in the estate of the decedent." No such principle is applicable here, as is clearly shown by the opinion of the learned judge below. We cannot profitably add anything further to the discussion, and no good purpose would be served by repetition in our own words of his reasoning in support of the conclusion which we have quoted above.

The decree is affirmed at the costs of the appellant.