text:
    Fett’s Estate.

      Equitable assignment — Certificate of deposit — Husband and wife— Decedents’ estates — Banks and banking. ’
    1. An equitable assignment is an agreement in the nature of a declaration of trust, which a chancellor, though deaf to the prayer of a volunteer, never hesitates to execute when it has been made on valuable, or even good consideration. An assignment of a chose in action or- of a fund need not be by any particular form of words or particular form of instrument.

      2. A trust company issued a certificate of deposit payable one year after date, bearing interest, in which it was recited that the depositor had deposited a stated sum of money, and that “the above deposit is not subject to check, and is transferable only on the books of the company on the return of this certificate.” The depositor owed his wife the exact sum stated in the certificate, being the proceeds of land which he had sold for her. After the depositor’s death, his widow, who was one of his executors, presented the certificate on the day it became due, and received a new certificate in which it was recited that she, one of the executors of the decedent, had deposited the same sum of money as the amount of the old certificate, payable one year afterwards to herself on return of the certificate. She indorsed the certificate in her own name as one of the executors. In each of the five succeeding years she returned the certificate delivered to her in the preceding year, and received a new one in the same form. On the certificates after the first one, she simply indorsed them with her own name, excepting in one instance. A witness-testified that at the time the old certificate was surrendered, the widow directed the officer of the trust company “to fix it in her name,” and gave to him as a reason, “so that she could get it.” This witness was an executor of the widow, and did not include the last certificate in the inventory of her estate. Held (1), that the widow had a right, as against legatees, to appropriate all of the assets to satisfy the debt due to her; (2) that the written and oral proof was sufficient to sustain a finding that she had made such appropriation, and (3) that the transaction taken as- a whole constituted an equitable assignment from the widow as executor to herself personally of the fund represented by the certificate.
    Argued Nov. 10, 1908.
    Appeal, No. 68, Oct. T., 1908, by-Jacob G. Fett, Administrator d. b. n. c. t. a. of Henry F. Fett, deceased, from decree of O. C. Berks Co., Oct. T., 1907, No. 20, dismissing exceptions to adjudication in Estate of Margarette Fett, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to adjudication. Before Bland, P. J.
    The facts are stated in the opinion of the Superior Court.

      Errors assigned were in dismissing exceptions to adjudication.

      Joseph R. Dickson, with him Henry P. Reiser, for appellant.—
    Upon its face, the certificate of deposit earmarks the fund represented by it as belonging to the estate of Henry F. Fett, deceased, and is payable to Margarette Fett, one of the executors: Wilks v. Groom, 25 Law J. ch: 724; Bank of Northern Liberties v. Jones, 42 Pa. 536.
    The depositor is clearly designated as Margarette, executrix, and “The depositor is presumed to be the real owner of the funds standing in' his name:” First National Bank v. Mason, 95 Pa. 113; Egbert v. Payne, 99 Pa. 239; Citizens’ Nat. Bank v. Alexander, 120 Pa. 476 ; therefore, presumptively at least, Margarette, executrix, is the owner of the fund.
    The evidence submitted, was inadmissible to vary the terms of the written contract and entirely, insufficient to overcome the presumption of ownership in the' estate of Henry F. Fett, arising from the certificate itself: Gillespie v. Iseman, 210 Pa. 1; Ry. Co. v. Henrice, 92 Pa. 431; Com. v. McAlister, 28 Pa. 480; Highlands v. R. R. Co., 209 Pa. 286.
    A'creditor’s rights ordinarily are superior, to those of. a beneficiary under a will, but if the creditor permits his rights to be lost by reason of the statute of limitations, the right of the beneficiary becomes the superior. And. if we concede that she was a creditor,,she did not assert her right within the requisite period of time and her claim- is now barred by the statute: Gracie’s Estate, 158 Pa. 521; Marsteller v. Marsteller, 93 Pa. 350.

      E. H. Deysher,.for appellee. —
    The evidence in the case clearly establishes, and the court has found as a fact, that Margarette Fett was possessed of a separate estate amounting to $1,242.50, which was invested by her in real' estate, and of this amount, at least $850 was paid to her husband or to her brother by his direction. It follows from this that Henry F. Fett, in 1878, became indebted to Margarette, his wife, in- the sum of. $850, loaned'to-him: Young’s Estate, 65 Pa. 101; Grabill v. Moyer, 45 Pa. 530; Wormley’s Estate, 137 Pa. 101; Hamill’s App., 88 Pa. 363.
    At the time of his death, Henry F. Fett held a certificate of deposit in the Pennsylvania Trust Company for' $850 which the court finds the executrix appropriated on account of her claim against her husband’s estate; that she had the right to do this is clearly established by the decisions of the courts of this state: Ex parte Meason, 5 Binney, 167.
    April 19,1909:
    The question is not the right of a creditor to question the deposit, but one of appropriation by Margarette Fett, and that can only be determined by her words and actions: Bank v. Mason, 95 Pa. 113; Citizens’ Nat. Bank v. Alexander, 120 Pa. 476; Nesmith v. Drum, 8 W. & S. 9; Watson v. Bagaley, 12 Pa. 164; East Lewisburg Lumber & Mfg. Co. v. Marsh, 91 Pa. 96.
    That Sarah Frock was a competent witness, is clearly sustained by the case of Dickson et al. v. McGraw, 151 Pa. 98; see also Brose’s Est., 155 Pa. 619; Rine v. Hall, 187 Pa. 264.
   Opinion by

Rice, P. J.,

Henry F. Fett, at his death in October 1900, was the holder of a certificate of deposit of which the following is a copy:

“The Pennsylvania Trust Company
“Reading, Penna., April 10, 1900.

“Henry F. Fett has deposited with this company, Eight hundred fifty dollars, payable April 10, 1901, to himself, on return of this certificate, in current funds, with interest at the rate of three per cent, per annum. The above deposit is not subject to check and is transferable only on the books of the company, on return of this certificate. ■ Interest to cease at maturity.

“D. W. Stehman,
“Treasurer.”

This certificate was not inventoried as part of his estate. When, in April, 1901, the money became due and payable, Margarette Fett, one of his executors, presented the certificate at the office of the trust company, and, having surrendered it, received a new certificate, issued in the name of the company and signed by its assistant treasurer, which reads as follows:

“Reading, Penna., April 10,1901.

“Margaret Fett, one of the executors of Henry F. Fett Estate, has. deposited with this Company, Eight hundred fifty and 00 dollars,,payable April 10, 1902, to herself, on return of this certificate, in Current Funds, with interest, at the rate of three per cent per annum. The above deposit is not subject to check, and is transferable only on the books of the Company, on return of this certificate.”

In each of the five succeeding years she surrendered the certificate delivered to her in the preceding year and received a new one, in the same form, except that in one instance the word “her” was used instead of the word “herself.” On the surrender of the certificate issued to Henry F. Fett she endorsed on it, “Mrs. Margarette Fett, one of the executors of Henry F. Fett, deceased,” but on the surrender of all the other certificates excepting one, she simply endorsed them “Margarette Fett.”

The evidence abundantly sustains the court’s finding of fact that at the time of his death Henry F. Fett was indebted to his wife, Margarette Fett, for the purchase money, $850, which he received upon the sale of her real estate. As one of the executors under his will, she had a right, as against legatees, to appropriate out of the assets sufficient to satisfy the debt due to her. The question is whether she did so. This must be determined as of the date when she surrendered the certificate issued to Henry F. Fett and took a new one payable to herself. If she did not appropriate or assign the fund to herself at that time, there is no warrant for holding that she did so afterwards, and, on the other hand, if she did appropriate or assign the fund to herself at that time, it is quite clear that it did not revert to the estate, by reason of anything that she did afterwards. The form of and the endorsements on the later certificates, in other words, the subsequent dealings between Margarette Fett and the trust company relating to the same fund, are proper for consideration as evidence of their interpretation of the original transaction between them, but they are insufficient to support a finding that any subsequent change in the ownership of the fund was made or intended.

Observe then the nature of the transaction as indicated by the paper itself construed in the light of the situation of the parties and the attendant circumstances, but apart from the testimony of Sarah Frock to which we shall hereafter refer: The parties were dealing with a chose in action, the legal title to which was in Henry F. Fett, originally, and which Margarette Fett had a right as executrix to assign to herself personally. Instead of drawing the money, as she might have done, and depositing it again in her own name and right, she surrendered the old certificate and took a new one. It is to be implied from this act and the form of the new certificate that she claimed the money due under the old certificate in her right as executrix, and, perhaps, although this is not so clear, renewed the deposit of it in the trust company in the same right. But there is an equally strong implication that it was made payable to “herself” by her direction. Whom then did she mean by that word? It is argued that by the rules of grammar the pronoun “ herself” stands for an antecedent and that the only antecedent is the substantive “Margarette Fett, one of the executors of Henry F. Fett, deceased.” Buies of grammar have their part in the construction of writings, but they do not control where the effect would be to defeat the actual intent discoverable by applying settled rules of construction to the instrument as a whole. Moreover, no rule of grammar would be violated if the instrument were to be construed as if “Margarette Fett” had been inserted where the word “herself” appears. It is argued further that to read the certificate as being payable to herself individually, would be to construe the writing into an undertaking which would be unlawful. This argument has already been met. Although the general rule is that the depositor is presumed to be the real owner of the fund standing in his name, yet that presumption does not prevail in equity where.in the certificate of deposit delivered to him the depositee undertakes to pay to another designated person. Viewing the paper in the light of the situation of the parties, and of the well established fact that Henry F. Fett owed a debt to Margarette Fett equal to the amount of the deposit, and keeping in mind her right to assign the fund to herself in discharge of that debt — creditors or persons having superior equities not being prejudiced thereby — there is strong reason for concluding that an assignment to herself individually was intended.

The foregoing conclusion is strengthened by the testimony of Sarah Frock who was present when the old certificate was surrendered and the new certificate was taken. Her testimony was to'the effect that Margarette Fett directed the officer of-the trust company “to fix it in her name,” and gave to him as a reason, “so that she could get it.” The fact that Sarah Frock was one of the executors of the will of Margarette Fett, who died after the last certificate issued, did not include it in the inventory of her estate, was a pertinent fact to be considered by the auditing judge in connection with her explanation in determining as to her credibility, but it had not the legal effect of destroying her testimony. We cannot say that the court ought not to have credited her testimony.

No particular form of words is necessary to make a valid assignment of a chose in action: “An equitable assignment is an agreement in the nature of a declaration of trust, which a chancellor, though deaf to the prayer of a volunteer, never hesitates to execute when it has been made on valuable, or even good consideration:” Nesmith v. Drum, 8 W. & S. 9. “An assignment of a chose in action or of a fund need not be by any particular form of words or particular form of instrument:” Watson v. Bagaley, 12 Pa. 164. “The form is immaterial, so that there be a clearly expressed intention, of an immediate transfer of the right to the assignee:” Ruple v. Bindley, 91 Pa. 296; East Lewisburg Lumber etc., Co. v. Marsh, 91 Pa. 96; Moeser v. Schneider, 158 Pa. 412. These general principles are illustrated in the above cases as well as in other cases cited by Mr. Bispham in his valuable chapter on the subject: Bispham, Principles of Eq. (7th ed.), sec. 167. Amongst others he cites Lightner’s Appeal, 82 Pa. 301, where it was held that a parol agreement to transfer stock as collateral security, followed by the execution of a power of attorney to transfer the same, amounted to an assignment of. the stock in equity, although the holder of the power of attorney died before he actually transferred the stock. Another pertinent case is Taylor’s Estate, 154 Pa. 183, where it was held that a- check for the whole amount of a deposit in bank will operate as an equitable assignment of the fund if it was intended to have that effect. It will be observed upon a perusal of that case, that it was necessary, and was deemed competent to resort to parol testimony as to what occurred when the check was delivered, in order to ascertain the intent of the drawer. We quote from the opinion of Judge Ashman, the auditing judge: “The decedent’s check was not drawn upon a general fund nor meant to withdraw therefrom a sum of money which was not earmarked; on the contrary it covered the whole fund, and was meant as a specific transfer of that fund. The testator’s language was that ‘He wanted to give his stepmother $650 which he had in bank;’ and the check was suggested to him as the readiest instrument by which the gift could be effected. It is impossible to doubt, from what he said and did, that he intended to assign his title to the fund, then and there; and there is little room to doubt that if he had made a formal assignment, his interest would have passed. But the delivery of the check worked the same result, because it had the same purpose. ‘Whenever the party has the power to do a thing (statutory provisions being out of the way) and means to do it, the instrument he employs shall be so construed as to give effect to his intention: Bond v. Bunting, 78 Pa. 210.’ ” Upon appeal, the Supreme Court said in affirming the judgment: “The check was drawn upon the bank for the full amount on deposit, under circumstances which showed that it was intended as an assignment of the fund. It did not come within the principle of that class of cases which holds that a check drawn in the ordinary form vests no title to the general funds of the drawer in the bank upon which it is drawn. It more nearly resembles Hemphill v. Yerkes, 132 Pa. 545.”

The transaction in question was partly in parol and partly in writing. The parol testimony in this case, as well as in several of the other cases cited, was as to what took place at the very time. It did not contradict anything expressed in the writing, or anything necessarily implied from what was written, but was in perfect harmony with it. If the writing alone does not, certainly the writing construed in the light of the pertinent facts above referred to, and of the acts and declarations of the parties at the time it was executed, fully warrant the conclusion at which the learned judge below arrived.

We have not undertaken to discuss the several assignments of error in detail, but only to suggest those matters that seem to us to sufficiently answer them.

All of the assignments of error are overruled and the decree is affirmed at the costs of the appellant.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Duff, Appellant, v. Thrall.
    April 19, 1909:

      Appeals — Costs—Printing paper-book — Act of April 15,1907, P. L. 83.
    The Act of April 15, 1907, P. L. 83, imposing the cost of printing the paper-books on an appeal on the losing party, applies only to appeals taken after the passage of the act.
    Argued Feb. 24, 1909.
    Appeal, No. 14, Feb. T., 1909, by plaintiffs, from order of C. P. Lycoming Co., Sept. T., 1906, No. 89, sustaining defendant's appeal from taxation of costs and disallowing costs of printing plaintiffs' paper-book on appeal in case of P. Duff & Sons v. F. B. Thrall, surviving partner of F. B. Thrall & Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Appeal from taxation of costs.
    The opinion of the Superior Court states the case.

      Error assigned was order sustaining the appeal from taxation of costs.

      Max L. Mitchell, for appellant.

      Herbert T. Ames, with him Thomas H. Hammond, for appellee.
   Per Curiam,

An appeal by the plaintiffs from the judgment of the common pleas was taken and argued before the passage of the Act of April 15, 1907, P. L. 83, but the judgment of this court reversing the judgment of the common pleas and directing judgment in favor of the plaintiffs on the verdict was not rendered until afterwards. The question is whether the act entitles the plaintiffs to have the amount expended by them for printing paper-books taxed as part of the costs. The learned judge below held that it does not, and it so happens that on the following day we rendered a decision to the same effect in another case: Smith v. Illinois Central R. R. Co., 36 Pa. Superior Ct. 584. This was followed by us in Barto v. Beaver Traction Co., 37 Pa. Superior Ct. 447, and again in the recent case of Miller v. Jackson, 38 Pa. Superior Ct. 477. The argument of the learned counsel for the appellant has not convinced us that this was erroneous. Having regard to the subject-matter of the act, as well as its words, it is more reasonable to conclude that the legislature had in contemplation future appeals, and not those that were pending and undisposed of in the appellate courts, and particularly not those in which the expense had been incurred before the passage of the act. As pointed out by our Brother Orlady in Smith v. Illinois Central R. R. Co., 36 Pa. Superior Ct. 584, the conclusion there reached is in harmony with the doctrine enunciated in Thomas’s Election, 198 Pa. 546.

The order is affirmed at the costs of the appellants.


text:
    Kistler v. Susquehanna, Bloomsburg & Berwick Railroad Company, Appellant.

      Negligence — Railroads—“Stop, look and listen” — Contributory negligence.

    In an action against a railroad company to recover damages for injuries sustained at a grade crossing, the evidence as to whether a whistle was sounded or a bell rung as a train approached the crossing, was conflicting. The plaintiff testified that he was driving a team at the time, and that he stopped about fourteen or fifteen feet from the crossing with the nearest horse a few feet from the rail. He looked and listened and, seeing and hearing nothing, started on with his horses at a walk. A train struck the back end of the wagon. He also testified that he had a view along the track for about 100 feet from where he stopped. Upon cross-examination he stated that the horses started on “a smart walk,” that the horses were on the track when he first heard the train, and that he urged them on all he could without whipping them, as he had no whip. It also appeared that there was a curve in the direction from which the train came, and plaintiff stated that even if he had got out of his wagon and gone on the track, he could not have seen much further than he did from the point where he stopped. The trial resulted in a verdict and judgment for the plaintiff. On appeal the six judges who heard the case were equally divided, and the judgment was affirmed.
    Argued March 1, 1909.
    Appeal, No. 73, March T., 1909, by defendant, from judgment of C. P. Columbia Co., Dec. T., 1907, No 92, on verdict for plaintiff in case of Freas C. Kistler v. The Susquehanna, Bloomsburg & Berwick Railroad Company.
    Before Rice, P. J., Porter, Henderson, Morrison, ORLADYand Head, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Evans, P. J.
    The trial resulted in a verdict and judgment for plaintiff for $1,300.
    On a motion for defendant non obstante veredicto, Evans, P. J., filed the following opinion:
    An accident occurred to the plaintiff at the grade crossing where the defendant’s railroad crosses the public road near Shaffer’s bridge in this county on March 9, 1907, at about ten o’clock in the forenoon. The -crossing where the accident occurred is a very dangerous one and is known as the Canby crossing.
    The plaintiff contends that the accident was occasioned through the negligence of the defendant company. The particular negligence of which the plaintiff complains is, that the train which caused the injury approached the crossing without giving any signal or warning by ringing the bell or sounding the whistle.
    The question as to whether the train approached the crossing without.giving signal by ringing the bell or sounding the whistle and the plaintiff’s .contributory negligence were submitted to the jury. In each instance the jury found against the defendant.
    This motion comes before the court because of our refusal to charge the jury that from the undisputed evidence the plaintiff was guilty of contributory negligence and therefore could not recover. That the plaintiff was guilty of contributory negligence in failing to stop, look and listen before undertaking to cross the tracks of the defendant company at a place where he had a view of the tracks which would have enabled him to have seen or heard the approaching train.
    It was conceded upon the argument of this motion that if the evidence entitled the plaintiff to recover that the verdict was a very reasonable one in view of the injuries sustained.
    The plaintiff and several of his witnesses testified that the whistle was not sounded or the bell rung as the train approached the crossing.
    The defendant’s witnesses testified that the whistle was sounded and the bell rung as the train approached the crossing. As to whether signal was given as the train approached the crossing was therefore a question for the jury to determine from the testimony. The testimony could not have been more contradictory upon that point.
    In order to justify the court in treating the question of contributory negligence as one of law, not only the facts but the inferences to be drawn from them must be free of doubt. If there is doubt as to either the case must go to the jury: Beach v. Penna. R. R. Co., 212 Pa. 567; Carroll v. Penna. R. R. Co., 12 W. N. C. 348; Muckinhaupt v. Erie Railroad Co., 196 Pa. 213.
    The whole duty of one about to cross the tracks of a steam road at grade is not in all cases confined to his stopping, looking and listening for the approach of a train. He must stop at a proper place, and when he proceeds he should continue to look and to observe the precautions which the danger of the situation requires. He should stop again if there is another place nearer the tracks from which he can better discern whether there is danger. But whether the place at which he stopped was the proper place at which to stop and whether there is a second place at which he should stop, are questions of fact for the jury, and not matters of law for the court: Muckinhaupt v. Erie Railroad Co., 196 Pa. 213; Cookson v. Pittsburg, etc., Ry. Co., 179 Pa. 184. In the latter case the court used the following language: “The usual and customary place of stopping by people using a road cannot be said as a matter of law to be an improper or negligent place. The standard of negligence is what persons of ordinary prudence and carefulness would do under the same circumstances, and a general habit of the public to stop at a certain place, is persuasive evidence that that place is the right one. The further the stopping place is from the track the greater will be the chance of an intervening peril before actual crossing. The duty of the traveler is therefore not only to keep a vigilant and continuous lookout, but to stop if a second place affords any increased facility to discover impending danger, but whether there is any such second place is a question of fact which is for the jury if at all in doubt.”
    The plaintiff testified as follows: “ Q. As you came along the Canby road and approached the Susquehanna, Bloomsburg & Berwick Railroad crossing, what did you do? A. Stopped. Q. ■About how close to the crossing? A. Well, I suppose in the neighborhood of fourteen or fifteen feet. Q. About how far was the nearest horse to the rail? A. Well, within a few feet as near as I could tell you. Q. And you were sitting, of course, on the right hand of the wagon? A. Yes, sir, on the driver’s side. Q. What else did you do besides stop? A. Looked and listened. Q. What did you see in the way of an approaching train? A. Didn’t see anything. Q. What did you hear? A. Nothing at all. Q. After seeing or hearing nothing what did you do? A. Drove on. Q. At what sort of a gait did you drive after your stopping and looking? A. Started on a walk as fast as an ordinary team would walk. Q. And what happened to you when you were on the crossing? A. Struck by a train, by the engine. Q. What part of the wagon was struck? A. The. hind end. Q. Can you tell me about how much of a view along the track westward you had when you stopped? A. I never measured; I would judge in the neighborhood of 100 feet, something like that. Q. Well, what was the effect of the striking of the wagon by the engine upon you? A. Knocked me over the side upon the ground. Q. Now I believe you said you heard nothing when you listened; what did you hear as to the sounding of a whistle or ringing of a bell? A. Didn’t hear any. Q. Now, coming down the grade that approached the Canby crossing from the north, you say you stopped when your horses were a few feet from the track; what other place was there, if any, where you could have gotten any better view of the track? A. There was not any. Q. Well, you could have gotten a better view standing out in the middle of the track? A. Do you mean by getting out of the wagon? Q. Yes, sir. You didn’t get out, did you? A. No, sir. Q. After you started up your team you were struck be'fore the wagon had cleared the track? A. Yes, sir. Q. At about what gait was your team moving? A. They started on a strong walk.”
    And upon cross-examination the plaintiff testified as follows: “Q. After you stopped, looked and listened, as you say, the horses started on what you call a 'smart walk’? A. A strong walk, yes, sir. Q. You were struck immediately after entering upon the track by the train? A. Yes, sir. Q. The locomotive hit your wagon about the middle of it? A. Yes, sir, somewhere I suppose. I could not tell exactly, but it struck the lock bar and the hind truck. Q. It was evidently then hit about the middle of the wagon? A. Yes, sir, a little back of the middle. Q. The horses had crossed? A. Yes, sir. Q. Did you stop talking when you stopped your horses? A. Yes, sir. Q. You were listening for a train? A. Why, certainly, yes, sir. Q. Knew that a train was likely to come along there at that point? A. Yes, sir. I didn’t know the exact time of the train. I was always on the lookout for a train, because I was always afraid of that place. Q. Have you ever made any observation there from the track, out there standing on the track between the rails, how far you could see to the westward? A. I don’t exactly know how far you can see. Q. You know you can see a great deal farther from the point you were sitting in the wagon. A. I don’t think I could see a great deal further, a very little further, because it is winding right around a hill. Q. Where were you when you first saw the train approaching you, on the track? A. The team were on the track. Q. You were just coming on the track when you first heard the train approachiñg? A. Yes, sir. Q. The horses were not on the track? A. Yes, sir; we were about coming on it with the wagon. Q. Did you whip the horses to get them across? A. No, sir. Q. What did you do? A. Urged them all we could; the best we could. Q. Had you a whip? A. No, sir. Q. Did you slap them with the lines? A. Yes, sir. Q. Did you call them to —? A. Yes, sir, we both hollered at them, like anyone else to get up. Q. And whipped them with the lines? A. Yes, sir.”
    April 19, 1909:
    The plaintiff’s testimony must be considered as a whole. The rule is, that where the net result of the plaintiff’s testimony is not clear, on part of it being clearly entitled to go- to > the jury, and on the other part equally clear not entitled to, the case upon the whole must go to the jury: Ely v. Pittsburg, Cincinnati, Chicago & St. Louis Railway Co., 158 Pa. 233; Glasé v. Philadelphia, 169 Pa. 488.
    Upon the trial we were not satisfied that there was conclusive evidence of the plaintiff’s negligence. We therefore submitted the question of the plaintiff’s contributory negligence to the jury.
    From further and more considerate examination of the question we believe that our submission of the question of the plaintiff’s contributory negligence was right. That there was no such testimony as would have justified us in saying to the jury that the plaintiff was guilty of contributory negligence and therefore cannot recover.
    And now, January 18, 1909, motion denied.

      Error assigned was in overruling defendant’s motion for judgment non obstante veredicto.

      Grant Herring, with him Seth T. McCormick, S. P. Wolverton and S. P. Wolverton, Jr., for appellant.

      Fred Ikler, with him Clinton Herring, for appellee.
   Per Curiam,

The six judges who heard this case being equally divided in opinion, the judgment is affirmed.


author: Rige, P. J.,

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

      Execution — Feigned issue — Fraud—Evidence.
    1. On the trial of a feigned issue to determine the ownership of property levied upon by a creditor of the defendant in the execution, if the plaintiffs in the issue claim to have derived title from the defendant in the execution, the defendant in the issue is entitled to show all the circumstances of the transaction between the plaintiff and the defendant in the execution as a part of one scheme to defraud the creditors of the latter, and such evidence cannot be rejected merely because its production would reveal the source of the plaintiff’s title to property other than that covered by the levy.

      2. Upon the trial of an issue involving questions of fraud, great liberality should be allowed in the admission of evidence, that the jury may be able to determine from all the circumstances whether the transaction was fraudulent or not.

      Evidence — Witness—Cross-examination.
    3. Where the defendant has called and examined an unfriendly witness,, the plaintiff will not be permitted to bring out his rebuttal in the cross-examination of the witness, unless the matter in rebuttal related to a subject upon which the witness was examined in chief.

      Appeals — Assignment of errors — Evidence.
    4. An assignment of error to the admission of evidence which does not incorporate the evidence admitted under the offer, does not conform to the rule.
    Argued Dee. 8, 1908.
    Appeal, No. 230, Oct. T., 1907, by plaintiffs, from judgment of C. P. Schuylkill Co., Jan. T., 1903, No. 175, on verdict for defendant in case of Commonwealth ex rel. H. J. Baker and H. P. Baker, trading as Baker Brothers, v. Edward S. Hyde.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Feigned issue to determine title to property levied upon., Before Marr, J.
    At the trial when Herbert Baker was on the stand, the following offer was made:
    We propose to show by this witness on cross-examination that the transfer by E. H. Baker to his wife and from his wife to these boys was a fraud upon the creditors, and if that were the case the purchases in the name of Baker Brothers of yams which were levied upon showing that they were purchased by Baker Brothers before the levy, they would be the property of E. H. Baker, we contend, and not the property of Baker Brothers, and that is why we contend this examination is proper. The machinery is only incidentally inquired of for the purpose of questioning the title of Baker Brothers, not by this transaction for that preceded the time that they got the title from their mother.
    The Court: The proposition here is, you claim title by virtue of purchase as it now stands from Mrs. E. H. Baker, and the contention of counsel for the defendant is that that purchase is not an honest purchase; the Baker Brothers are simply carrying on this business as a cover for E. H. Baker, their father. Now it is very difficult to limit the inquiry upon an examination of your witness as to the character of all the goods in this mill, as to the possession of all the goods, and as to the value of them and anything that may throw any light on this title. It is an attack on your title; that your title is a fraudulent title, and we think in a question of this kind the rule has been and is, as I understand it, to allow a great deal of latitude in the examination and cross-examination. They are attempting to show there is a fraud, but they cannot establish fraud by a five-minute examination or five-minute cross-examination, but that is not any reason why we should limit them to their cross-examination where they are attempting to show fraud.
    Mr. Shepherd: What right have they got to bring in matters here that have no bearing upon this issue whatever?
    The Court: I am not prepared to say they have not some. You set up the title and they are attacking that title. Why cannot they show what you allege is a good title is not a title at all, but simply a cover? We will admit the evidence and grant you an exception.
    Plaintiffs except. Bill sealed. [1]
    The defendant offered in evidence the bill of sale from E. H. Baker to George W. Gise, dated April 15, 1901.
    “Know all men by these presents, that I, E. H. Baker, of the Borough of Schuylkill Haven, County of Schuylkill, and State of Pennsylvania, in consideration of the sum of One Hundred (1100.00) Dollars, to me in hand paid by George W. Gise, of the same place, at, and before the ensealing and delivery thereof, do by these presents, grant, bargain, sell, release and confirm unto the said George W. Gise all and singular the goods and chattels, enumerated and mentioned in the schedule hereunto annexed, marked schedule of goods mentioned in the foregoing bill of sale, to have and to hold the said goods and chattels and every of them to, and for the use, ownership and behoof of the said George W. Gise, his executors, administrators and assigns, absolutely.
    “Witness my hand and seal this 15th day of April, A. D. 1901. Signed, sealed and delivered in the presence of C. H. Goas.
    “E. H. Baker [seal.]
    “Eleven body frame machines; 9 sleever machines; 1 fleecer machine; 1 fleecer machine (old); 6 union special finishing machines; 1 boiler and engine complete; 3 Wheeler and Wilson button hole machines; 3 Wheeler and Wilson button sewing machines; 5 Wheeler and Wilson tape machines; 4 crocheting machines (Merritt machines); 1 Murphy trimmer machine; 40 cases of yarn No. 10, No. 11, No. 12, and No. 20; 3,000 doz. goods finished and unfinished; 100 empty cases, new and old; one case sewing cotton, one case lace, one small case braid, one desk; and office chairs and fixtures, one 60 light dynamo.
    “C. H. Goas, J. P.”
    Mr. Shepherd: Objected to, because the parties in this suit are not connected with it in any way, and cannot affect the plaintiffs in this case.
    Mr. Whalen: To be followed by the transfer from George W. Gise, to Deborah L. Baker.
    Mr. Shepherd: If it is to be followed by that, it would be incompetent without showing knowledge of the plaintiffs of the transfer to Deborah L. Baker. If there is any fraud in it, they would have to connect the parties with it, to show their knowledge of it in the transaction. It is therefore incompetent and irrelevant for the purpose for which it is offered.

      Mr. Whalen: This transfer already read is to be followed by the transfer of George W. Gise to Deborah L. Baker, for the same property, and to be followed by the deeds, transferring all the real estate owned by E. H. Baker to George W. Gise and by George W. Gise to Mrs. E. H. Baker, for the purpose of showing fraud in the transaction; to show the inadequacy of price, to be followed by other evidence than the parties themselves, to show the inadequacy of the price as bearing upon the fraudulent transfer of this paper to hinder and delay the creditors of E. H. Baker, and for the purpose of showing these sons were only acting as figureheads in the whole transaction, and that E. H. Baker is the sole and actual owner of all this property, real and personal.
    Mr. Gise: The plaintiffs in this case object, first, that the testimony disclosed that the lease between Baker Brothers and Deborah L. Baker was made without any knowledge on the part of Baker Brothers of any fraud or fraudulent intent on the part of E. H. Baker to Deborah L. Baker, his wife; if there was any fraud or fraudulent • intent between them and that under the testimony elicted upon direct cross-examination of Baker Brothers, they positively swore that they had no knowledge of any transfer of the real estate of E. H. Baker to his wife, until after the day of the lease to them; that they being innocent, bona fide lessees without knowledge of fraud between E. H. Baker and Deborah L. Baker they cannot be affected by the introduction or admission of the deeds of conveyance of the real estate and bill of sale of the personalty, which is intended to be included in this offer.
    The Court: We will admit the evidence.
    Plaintiffs except. Bill sealed. [2]
    It is proposed to prove by the witness, E. H. Baker, that on or about April 11 and 12, in the month of April some time, 1901, he was the owner of certain shares of stock in the First National Bank of Schuylkill Haven, and that about that time he transferred these shares, he sold these shares, and to whom he sold them and for the purpose of inquiring what became of the money realized from the sale of this property in connection with the testimony already before the court; that it was about that time he had transferred all his real estate and all his other personal property, which the defendant alleged was done for the purpose of defrauding his creditors or interfering with their collection of money then due by him to them.
    Mr. Koch: The offer is objected to upon the ground it is not competent, relevant or material to the issue. Second, it does not tend to show any mala fides on the part of the plaintiffs in this case. Third, it is not proposed to show that the plaintiffs in this case had knowledge of the purposes of the witness on the stand, if his purposes were unlawful or fraudulent.
    The Court: We will admit the evidence.
    Plaintiffs except. Bill sealed. [3]
    “Q. When you were on the stand you were asked concerning the consideration in these papers, in the deed for the real estate, I believe it is $50.00, as I recollect it; in the bill of sale for the machinery in the mill it is $100. Was that the full consideration for these transfers? A. Yes, sir. Q. Was there not anything that you owed your wife? A. Yes, sir. Q. Did you pay that to her? A. 'In the transfers, yes.”
    Mr. Whalen: Objected to; not being a part of the consideration mentioned or referring to any in the papers themselves.
    “Q. How much was the actual consideration. The stated consideration is $150. How much was the actual consideration? ”
    Mr. Whalen: Objected to. It is not set forth or referred to in the papers.
    The Court: The title to the real estate is not in controversy here.
    Mr. Shepherd: It is in evidence here and it is going in evidence to affect this case to show the amount of this transfer by this man for the purpose of crying fraud, speaking of it continually. We want to show what the real consideration is.
    The Court: To show the effect of the transfer of the property.
    Mr. Shepherd: Transfer of the property with intent to defraud.
    The Court: From husband to wife.
    Mr. Shepherd: And the other is inadequacy of consideration. The consideration in a deed can always be explained.
    Mr. Whalen: It seems to me that the testimony of the transfer of this property; that at the introduction of the record of these deeds from Baker to his wife and to Mr. Gise and from Gise to Mrs. Baker and the consideration in the bill of sale was for the purpose of showing that in 1901, when Baker was indebted to Hyde, Mitchell & Company, that he had transferred all his property. ' We say for the purpose of defrauding his creditors. The consideration mentioned in the deeds and the bill of sale are the only considerations referred to in dollars and cents. There is no other valuable consideration referred to. It seems to me it is not fair and not right to add to these deeds and these papers that which was not part of them at the time, and not considered at the time.
    The Court: If the title to any of the real estate or property is in controversy here I think counsel would have a right to explain the full consideration, but it is not in controversy. The only property that is in controversy here at all were some few wooden boxes, a safe, scales and a few chairs. It seems to me that it would be proper if you desire to show the value of that property which is in controversy as paid for was a fair consideration, but I do not see the necessity of going into the full consideration of the real estate or personal property which is not in controversy.
    Mr. Shepherd: The witness is called for further cross-examination for the purpose of showing the real consideration for the transfer of the properties.
    Mr. Koch: We call this witness for further cross-examination.
    Mr. Shepherd: Plaintiffs have called him and examined him for the purpose of showing the real consideration for the transfers which have been offered in evidence by the defendants in this case. They having made an offer of those records and in their offer proposed showing that this transaction here is a fraud because of the inadequacy of the considerations in these transfers; one of the points made in their offer, and admitted for that purpose; one of the purposes for which it is admitted. We therefore ask to cross-examine this witness on the value of this property, the real consideration of the transfer of these properties.
    The Court: The offering of those deeds and this bill of sale was not to show the inadequacy of price, but was to show that Mr. Baker divested himself of all his property.
    Mr. Whalen: We have put in evidence the papers made by the Bakers themselves. We have not added to them one iota. We have simply informed the court and jury what they contain. Is it right for them to say we rebut the evidence of our own acts by showing a different state of things?
    Mr. Shepherd: It is not a rebuttal.
    Mr. Whalen: What is it?
    Mr. Shepherd: It is an explanation. We did not ask him to go on there to rebut; we ask for further cross-examination of the witness.
    The Court: Was this witness asked anything about the consideration of those deeds?
    Mr. Whalen: I did not ask him anything about it, I simply showed the consideration by these papers. I did not ask him anything about that because I avoided that.
    The Court: I do not think this witness was asked a question as to the consideration of the deeds or the consideration of the bill of sale. How is it a cross-examination?
    Mr. Whalen: Objected to. When this witness was upon the stand he was not asked anything in direct examination as to the consideration for the deed or the consideration in the bill of sale, and no inquiry was made of him as to the consideration of any kind of any transaction or sales or transfers, and therefore the question proposed is not a cross-examination and is incompetent and irrelevant.
    Plaintiffs except. Bill sealed. [4]
    Verdict and judgment for defendant. Plaintiffs appealed.

      Errors assigned were (1-4) rulings on evidence, quoting the bill of exceptions.

      W. F. Shepherd, with him George W. Gise, for appellants.—
    The evidence must be given that has a bearing upon the case at issue; and in some way or other affects it. In cases of this kind the property purchased by a party from another without knowledge of any fraud, even though fraud existed, will not affect the title of the purchaser of the property: Jones v. Lewis, 148 Pa. 234; Sebring v. Brickley, 7 Pa. Superior Ct. 198.
    April 19, 1909:
    A conveyance of land by an insolvent to a creditor in consideration of his debt is valid though the preference thus given has the intended effect of delaying other creditors: Covanhovan v. Hart, 21 Pa. 495; Uhler v. Maulfair, 23 Pa. 481; Lloyd v. Williams, 21 Pa. 327.
    One who purchases bona fide, for a valuable consideration and without notice of the fraud, from a party to whom the property was transferred in fraud of the creditors of the original transferor takes a good title, whether the fraud be legal or actual: Shaw v. Levy, 17 S. & R. 99; Lee v. Byers, 2 Chester Co. Rep. 134; Mateer v. Hissim, 3 Penrose & Watts, 160.

      Wesley K. Woodbury, with him John F. Whalen, for appellee. —
    The very heart of defendant’s case was to show that H. J. Baker and H. P. Baker had no title to the property levied upon; that the transactions relative to the transfer of any property to them and the subsequent management of it, showed fraud all through the transactions, and, therefore, the rule as to the great latitude allowed in the admission of evidence in cases of fraud was properly observed in this case: Stauffer v. Young, 39 Pa. 455; Glessner v. Patterson, 164 Pa. 224; Schoeneman v. Weill, 3 Pa. Superior Ct. 119; Van Sciver Co. v. McPherson, 199 Pa. 331; Houseman v. Grossman, 177 Pa. 453.
   Opinion by

Rige, P. J.,

The first three assignments of error relate to the admission of evidence, the nature of which appears in the offers quoted in the assignments, and its relevancy is shown by the following extract from the opinion of the learned court below overruling plaintiffs’ motion for a new trial: “Edward S. Hyde, defendant above named, on May 29, 1902, obtained a judgment against E. H. Baker for $2,454.30 for goods sold to him by the defendant, Edward S.. Hyde, during the early part of the year 1901, and prior to the transfer of E. H. Baker of all his real estate and personal property to George W. Gise, an attorney, and by the attorney to Deborah L. Baker, wife of E. H. Baker, under whom the plaintiffs above named claim title. The evidence further establishes that at the same time E. H. Baker was indebted to other parties in several thousand dollars and that judgments were subsequently obtained against him. It further appears that Mr. Baker sold his bank stock for $3,100, and drew out of the bank $4,000 which the same day was credited to Baker Brothers, above named plaintiffs. Subsequent to Mr. Hyde obtaining his judgment on May 29, 1902, an execution was issued against Mr. Baker, the father, a levy made upon some of the personal property, which formerly belonged to the father and which had been sold to Gise, the attorney, on April 15,1901, and by him sold to Mrs. Baker, the wife of E. H. Baker and the mother of plaintiffs, who claimed the property in controversy. Under the evidence, the execution creditor claimed that the transfer by E. H. Baker, of practically all his property, was done for the purpose of defrauding his creditors, and the sale of the goods in controversy, to the plaintiffs and then carrying on of the business, which had been carried on for years by their father was simply a cover for their father to enable him to defeat his creditors. For this purpose the execution creditor put in evidence the bill of sale of the personal property, the deeds for the transfer of real estate, the sale of the bank stock, and the withdrawal of the $4,000, deposit of the father and the subsequent depositing of same to the credit of the sons, who are plaintiffs in this controversy, and followed these transfers by showing the value of the personal property and of the real estate.” In connection with his references to these transactions and to the evidence as to the actual value of the property as contrasted with the expressed consideration, the learned trial judge said in his charge: “The object of admitting that evidence was to show on the part of the plaintiffs (defendant) that this transfer of the property by the father to the wife and the transfer of the money in bank from the father to the sons’ account was done for the purpose of defrauding creditors, several creditors, at least of the father, and for the purpose of satisfying you that the sons, who are the plaintiffs in this case, knew of this fraudulent transaction and were a party to it, and that the sons at the present time, or at the time of the levy, subsequent to April 11, 1901, were carrying on this business simply as a cover for the father. In other words, that the business was really the father’s business and not the sons’ business, and that in my opinion is the vital question in this case.” No part of the charge is assigned for error, and even if this part were, we would hold it to be a fair statement of the main question in the case, and as showing, without necessity for much argument, the relevancy thereto of the evidence now under consideration. In their affidavit in support of their claim, the plaintiffs alleged that they derived title to the property levied upon by sale from E. H. Baker. If so, it was competent for the defendant to show by all the circumstances that this transaction was part of one scheme to defraud the creditors of E. H. Baker. And, even if it be assumed that some of the property was acquired by the. plaintiffs from other sources in the course of the business after they ostensibly took charge of it, it certainly was competent to show that the business was really the father’s and not the sons’; and, as counsel for the appellee well say, in trying the title to the personal property levied on, the whole transaction had to be revealed in order to understand its different parts. “The rule that great latitude should be given in investigating questions of fraud is elementary: B. & O. R. R. Co. v. Hoge, 34 Pa. 214. It was said in Reinhard v. Keenbartz, 6 Watts, 93: ‘Upon the trial of an issue involving questions of fraud, great liberality should be allowed in the admission of evidence, that the jury may be able to determine from all the circumstances whether the transaction was fraudulent or not.’ In Stauffer v. Young, 39 Pa. 455, the reason of the rule was fully and clearly stated: ‘The meaning of the maxim that great liberality of evidence is to be allowed in the trial of questions of fraud is that every circumstance in the condition and relation of the parties, and every act and declaration of the person charged with the fraud, shall be competent evidence, if in the opinion of the judicial mind it bears such a relation to the transaction under investigation as in its nature is calculated to persuade the jury that the allegation of fraud is or is not well founded:’ Fell, J., in Glessner v. Patterson, 164 Pa. 224. We are of opinion that the evidence under consideration is within the rule and the reason of it and was properly admitted. The first three assignments are overruled. We remark in addition, lest our omission to do so be misunderstood, that the first and third assignments do not conform to our rule, in that they do not incorporate the evidence admitted under the offers, and might be dismissed for that reason alone.

The appellant’s counsel place greater reliance on the fourth assignment. The question arose in this way: In the presentation of their case the defendant called E. H. Baker, who was evidently not a friendly witness, and examined him as to the fact of his having transferred his real estate and personal property — a fact otherwise proved and not in dispute — but not as to the consideration. After the defendant rested, the plaintiffs recalled the witness for the purpose of showing the real consideration of the transfer. As shown by the bill of exception quoted in the assignment, considerable discussion took place between court and counsel as to the relevancy of the testimony, but in the end, counsel for plaintiff stated that they did not call him in rebuttal but for cross-examination. Then the objection was distinctly made that the proposed cross-examination did not relate to anything upon which he was examined in chief, and it is apparent that the court rejected the proposed cross-examination upon that ground. In this there was no error. The ruling, and it is the only ruling upon the examination or cross-examination of this witness that is assigned for error, did not preclude the plaintiffs from calling him in rebuttal and obtaining a ruling as to the relevancy of his testimony and assigning that for error, if it was against them. While they did afterwards call him distinctly in rebuttal, they have assigned no ruling then made for error. There were substantial reasons, growing out of the attitude of this witness towards the parties, why the defendant was justified in insisting that the plaintiffs’ rebuttal should not be brought out in the cross-examination of the witness, unless it was strictly cross-examination.

Upon a full consideration of all the matters assigned for error we find no cause for reversal.

The judgment is affirmed.


author: Rice, P. J.,

text:
    Templeton, Appellant, v. Williams.

      Justice of the peace — Illegal fees — Police officer — Witness fees — Act of July 14, 1897, P. L. 266.
    1. The Act of July 14, 1897, P. L. 266, does not make it unlawful for a police officer who has made an arrest in a criminal case and who testifies upon the trial of the case, to demand the statutory witness fee.
    2. A charge of two cents for a postage stamp paid directly to a constable and used by the latter for mailing to a defendant a notice instead of subjecting him to the expense of a warrant, is not an illegal fee, such as will subject a justice of the peace to a penalty of $20.00.
    3. Where a plaintiff is not entitled to judgment for his whole claim, the court cannot be convicted of error in not making an order permitting him to take judgment for part of it and to proceed with his action for the recovery of the balance, where neither in the application for the rule, nor in the rule itself, nor in any other manner, so far as the record shows, was the court asked to exercise the power conferred by the Act of July 14, 1897, P. L. 266.
    Argued Dec. 11, 1908.
    Appeal, No. 225, Oct. T., 1908, by plaintiff, from order of C. P. Montgomery Co., Oct. T., 1908, No. 169, discharging rule for judgment for want of a sufficient affidavit of defense in case of D. F. Templeton, Jr., v. H. Calvin Williams.
    Before Rige, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Rule for judgment for want of a sufficient affidavit of defense.
    Swartz, P. J., filed the following opinion:
    This is an action to recover penalties for the alleged taking of illegal fees by a justice of the peace.
    The affidavit of defense avers that all the charges made and taken were within the fee bill of May 23, 1893, P. L. 117.
    The case in which the controversy arose, was a suit to recover the penalty for running an automobile in excess of the speed allowed under the Act of April 19, 1905, P. L. 217. The proceeding was by summary conviction.
    The charges which are alleged to be illegal are as follows: “Information 50 cts.,” “Exam. Deft. 50 cts.,” “1 witness 50 cts.,” and “stamp 2 cts.”

      The affidavit avers that the abbreviation, “Exam. Deft.,” means “writing an examination of the defendant.” A justice does not incur the penalty imposed by the Act of May 26,1897, P. L. 100, where he makes a mistake' in noting in abbreviated form the charge for a particular service: Whitmore v. Craig, 32 Pa. Superior Ct. 292.
    The defendant also avers that there was an information written out for which his charge is made, and that at first the information was given verbally and then reduced to writing. The affidavit also alleges that the defendant in the summary conviction proceedings offered himself for examination and that his examination was reduced to writing by the justice. The justice must be allowed to make good his assertions that these services were rendered within the provisions of the fee bill of 1893.
    The plaintiff’s statement alleges that the witness for whom the charge of fifty cents was made, is a policeman for the township of Abington and receives a stipulated salary. It is admitted in the affidavit of defense that the said witness is a policeman receiving a salary from the township which employs him.
    Counsel for defendant contends that testifying as a witness is not'an official duty of the policeman, that the taking of a witness fee is not prohibited by the Act of July 14, 1897, P. L. 266. This act provides that, “ It shall not be lawful for any such policeman to charge or accept any fee or other compensation in addition to his salary, for any service rendered or performed by him of any kind or nature whatsover pertaining to his office or duties as a policeman, except public rewards and legal mileage allowed for traveling expenses.”
    Attending as a witness is not a service pertaining to the office of a policeman: Com. v. Lloyd, 9 Kulp, 25; to the same effect is Davis v. Schuylkill County, 12 Pa. Dist. Rep. 190. If the charge were made for serving a warrant the fee could not be allowed: Weaver v. Schuylkill County, 17 Pa. Superior Ct. 327; Walsh v. Luzerne County, 36 Pa. Superior Ct. 425. We are not aware that the question, so far as it relates to witness fees, was reviewed by the appellate courts. It is true that ignoranee of the law will not excuse a justice in taking illegal fees, Whitmore v. Craig, 32 Pa. Superior Ct. 292, or relieve him from the penalty under the act of 1897. If a judge of the courts makes an error in his interpretation of the law, he is not liable in damages to anyone, a justice under similar conditions must pay a penalty of 150.00.
    April 19, 1909:
    There is this difference, however, that a justice by his ruling brings money into his own pockets, and the act of 1897, no doubt, was intended to remove the temptation to practice extortion.
    This leads us to the conclusion that the act was not intended to cover any charge or fee except that which related to his office as justice. The fee must be charged for the services of the justice and not for the services of the policeman before it is an “illegal taking” by the justice. He must take the fee by virtue or color of his office. The act of 1897 makes the taking of illegal fees for any service the unlawful act. The charges of fifty cents for witness and two cents for a stamp were not charges for services rendered by the justice. The officer who gave the testimony, made out the claim for witness fees according to jdie affidavit of defense and the charge for the stamp was compensation to the policeman who used a stamp in writing to the offending driver of the automobile. When the justice signed his name to the itemized bill it was a declaration on his part, at most, that in his opinion the officer was entitled to witness fees and compensation for the stamp.
    And now, November 9, 1908, the motion for judgment is overruled and the rule is discharged.

      Error assigned was order discharging rule for judgment for want of a sufficient affidavit of defense.

      Edwin S. Nyce, for appellant.

      John Faber Miller, with him Samuel H. High, for appellee.
   Opinion by

Rice, P. J.,

We concur with the learned judge below in his conclusion, and for the reason given in his opinion, that the Act of July 14,1897, P. L. 266, does not make it unlawful for a police officer who has made an arrest in a criminal case, and who testifies upon the trial of the case, to demand the statutory witness fee.

The charge of two cents, as explained in the affidavit of defense, was not for any service rendered or claimed to have been rendered by the justice, nor for any fee which he claimed was legally chargeable by him or the constable, but was made by the constable and was paid to him directly by the plaintiff to reimburse the constable for a postage stamp he had used in mailing to the plaintiff, a notice of the proceeding, instead of subjecting him to the expense of the service of a warrant. The facts set forth in the affidavit of defense repel the conclusion that it was exacted by the justice from the plaintiff colore officii. The law as to penalties for taking illegal fees is very strict, but not so absurdly strict as to make a justice of the peace liable to a penalty of |20 under the circumstances connected with this charge as explained in the affidavit of defense.

As to the other two charges there is more room for doubt as to the sufficiency of the affidavit of defense. But it is unnecessary to decide positively as to these two items prior to the trial of the case and a full development of the evidence relating to them. As the plaintiff was not entitled to judgment for his whole claim the court ought not to be convicted of error in not making an order permitting him to take judgment for part of it, and to proceed with his action for the recovery of the balance, where neither in the application for the rule, nor in the rule itself, nor in any other manner, so far as the record shows, was the court asked to exercise the power conferred by the Act of July 14, 1897, P. L. 266.

The appeal is dismissed at the costs of the appellant, without prejudice to his right to a trial by jury and a second appeal after final judgment.


text:
    Lowry, Appellant, v. Forest City Borough.

      Boroughs — Resolution—Expenditure of money — Ordinance—Borough building — Injunction—Preliminary injunction — Dissolution of injunction —Equity.

    A preliminary injunction restraining the expenditure of public money in making certain alterations upon a municipal building of a borough, will be dissolved, where it appears that although the alterations were authorized in the first place by a mere resolution of the council, yet, after the injunction was granted an ordinance in due form was passed ratifying the previous resolution, and it also appears that the alterations were proper, and that the expenditure of money would materially increase the rentals from the portion of the building not used for municipal purposes.
    Argued March 1, 1909.
    Appeal, No. 72, March T., 1909, by plaintiff, from decree of C. P. Susquehanna Co., Aug. T., 1908, No. 45, dissolving preliminary injunction in case of S. E. Lowry v. Forest City Borough et al.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Motion to dissolve preliminary injunction.
    Little, P. J., filed the following opinion.
    The borough of Forest City, Susquehanna county, was incorporated August 25,1888, under the provisions of the general borough Act of April 3, 1851, P. L. 320, and its supplements.
    During the year 1900 proceedings were instituted by the borough of Forest City, under the provisions of the Act of April 20, 1874, P. L. 65, for the erection of a municipal building in said borough. The proposition was submitted to the electors, and after an affirmative vote was polled, the construction of the building was undertaken and completed some time during the year 1902. The building contained three stories and a basement, and was much larger than was required for municipal purposes at the time of its completion, or is required at the present' time. A large portion of the building was originally designed and constructed for the purpose of renting, and from the time of its completion and occupancy, all of the third floor, a greater portion of the second floor and a part of the first floor has been rented for business purposes, and the rent derived therefrom has been collected by the council, and made a part of the general fund of the borough.
    A part of the main floor fronting on Main street had been occupied by the Enterprise Hose Company, an organization of firemen in said borough. On February 24, 1908, the Enterprise Hose Company presented a petition to council (as shown by the members of the council of that date) in reference to changes in the municipal building and it was testified by W. J. McLaughlin, a member of the council, that there had been no discussion in council with reference to said changes until after the presentation of this petition. Upon receipt of the communication from the hose company a committee was appointed to confer with the postmaster. After negotiations had continued for some time an architect was employed, and on April 27, 1908, the council definitely determined to make the contemplated alterations, to remove the hose company to quarters in the rear of the building, and reconstruct the room vacated by the hose company for rent.
    The contract, on motion of the council, was let to Box and Holt, two of the defendants, and the alterations were commenced under the supervision of the building committee.
    The front of the room occupied by the hose company had been taken down, partitions removed and the work was well under way, when the plaintiff, on May 1, 1908, filed this bill in equity and a preliminary injunction was granted restraining further operations until an ordinance had been passed and approved by the burgess as required by law.
    The first amendment was subsequently filed praying restraints of all proceedings by virtue of action taken by council of April 27. Defendants answered that on May 11, 1908, council adopted a resolution ratifying and approving its previous action of April 27, and on May 18, passed an ordinance authorizing the alterations in the municipal building; that both the resolution and ordinance were duly and legally adopted, approved by the burgess, and published and advertised as required by law.
    From the testimony taken it is apparent that the members of the council were acting in the utmost good faith, not proceeding with the alterations without due and proper deliberation extending over a period of approximately two months; and further that it is manifestly for the interest of the taxpayers of said borough of Forest City that the alterations be made, and all the room in the municipal building utilized. It also appears that by the expenditure of $450 the building will be sufficient to accommodate the borough for all municipal purposes, and increase the revenue derived therefrom from $25.00 to $30.00 per month, and that such expense is necessary to properly appropriate the building to the best advantage.
    This case presents a unique situation. The present council of the borough of Forest City when elected to office, assumed, among other duties, the care and disposal of the vacant space in the borough building. These rooms were rented as had been done by their predecessors in office. When the alterations were first contemplated the council evidently had two purposes in mind; first: the removal of the hose room to the rear of the building, which seems to have been undertaken at the instance of the hose company; and second: the proper utilization of the room to be vacated by them.
    When the preliminary injunction was granted the work had advanced to such an extent that it will incur the same expense to restore the building to its original condition, as it will to complete the alterations as testified by Mr. Box, one of the defendants and contractors. Assuming that the building must be restored, if at the expense of the borough it would be an expenditure of public money without any possible return to the public, and a loss to the taxpayers; or if it is restored at the expense of the members of council and contractors, this likewise would create a severe hardship, and impose a penalty upon citizens acting in a representative capacity and in good faith.
    Plaintiff in the original bill, and more specifically in the first amendment, sets forth that he and others, taxpayers, will suffer irreparable injury if the work in making the alterations is not restrained. At the hearing no evidence was introduced to establish this allegation or to show in what manner any injury will be sustained; on the other hand, it was proven by the testimony offered on the part of the defendants, that the proposed quarters for the use of the hose company will be sufficient, that the public welfare will be subserved by the removal of a possible danger, and that the revenue received will pay the expense incurred in making the alterations in less than two years, and thereafter bring to the borough a substantial gain.
    Learned counsel for the plaintiff strenuously contend that the action of the council of April 27, not only is void in law, but the resolution of May 11, and ordinance of May 18, provides for the expenditure of public money for a private purpose and is therefore an excession of power delegated to the council under the law of Pennsylvania and ultra vires. The action of the council of April 27 was subsequently ratified by the council. This can be lawfully done provided the act in awarding the contract is within the corporate powers of the municipality: In re Millvale Boro., 162 Pa. 374; Tarentum Boro. v. Moorhead, 26 Pa. Superior Ct. 273; Silsby Mfg. Co. v. Allentown, 153 Pa. 319.
    This -brings us to the fundamental question in the case, to wit: the power of the council in appropriating money of the borough to make the proposed alterations in the municipal building. It must be remembered that the alterations and the expenditure of public money on account thereof, involved the preparation of a room for the use of the hose company, an organization for which it was not only the right, but the duty of the council to provide suitable accommodations in the municipal building. It was conceded at the argument that a borough having excess room in its municipal building, and not required for municipal purposes, would have the right to rent the same within the sound discretion of the borough council.
    If this proposition is correct, it necessarily follows that the council would have the power to make any reasonable repairs or alterations to the building in order to keep, said rooms in a tenantable condition.
    This has been held to be the law in other jurisdictions, but after an exhaustive research, I am unable to find any case where this question has been before the Pennsylvania courts. In the case of Bates v. Bassett, 1 Lawyers’ Reports Annotated, 166, a decision was rendered by the supreme court of Vermont and the facts were similar to the case at bar. In the opinion the court said: “The town has no right as a primary purpose to erect buildings to rent, but if in the erection of its hall for its proper municipal uses it conceives that it Will lighten its burdens to rent part of its building whereby an income is gained, no sound reason is suggested why it should not do so.” French v. Inhabitants of Quincy, a Massachusetts case, reported in 85 Mass. 9, was an action instituted to recover certain property devised to the borough of Quincy to be used for municipal purpose on the ground that the borough had misappropriated the property by renting a certain portion of the town building erected thereon. It was held: “The court are of the opinion that a town having in its town house rooms which it had authority to construct as part of such building, and not having occasion to use them for the time being, is not obliged to keep them unoccupied, but may derive a revenue from them by renting them, or may allow them to be used gratuitously; such a use of the property is within its legal authority. And if this be so, the condition of the deed is not broken, for it cannot be construed more strictly than to require of the town to maintain a town house on the land which shall not be put to any illegal and unauthorized use.” In Spaulding v. City of Lowell, a Massachusetts case, reported in 40 Mass. 71, the court said: “It is further contended in the present case, that even if the town had authority to assess money for building a market house, yet that it would not justify the present tax because a part of the building was appropriated to other objects. If this had been a colorable act, under the pretense of exercising a legal power looking to other and distinct objects beyond the scope of the principal one, it might be treated as an abuse of power and a nullity.
    “ But we perceive no evidence to justify such a conclusion in the present case. The building of a market house was the principal and leading object, and everything else seems to have been incidental and subordinate; we cannot, therefore, say that it was such an excess of authority as to invalidate the acts which they might rightfully do.”

      April 19,1909:
    In Kingman v. Brockton, 153 Mass. 255 (26 N. E. Repr. 998), the principle decided in Spaulding v. Lowell, 40 Mass. 71, and French v. Quincy, 85 Mass. 9, was approved. In further commenting on the same, the court say: “But there may be some danger of extending this doctrine too far. Should a question arise whether a contemplated building exceeded what was allowable with reference to legitimate needs such question would have to be determined upon its own merits, and the good faith of the transaction, and the soundness of the judgment shown in providing for future wants might have' to be considered.”
    Therefore being of the opinion that the council of the borough of Forest City, under the conditions existing at the time action was taken, was justified in making the proposed alterations in the municipal building in said borough, the preliminary injunction must be dissolved.
    It may be proper to state that while the pleadings are somewhat confused, the court considered it advisable to dispose of all the questions involved in the controversy in the pending proceeding, rather than entertain a second bill in equity.
    Now, August 10, 1908, the preliminary injunction heretofore granted is dissolved

      Error assigned was the decree of the court.

      George W. Maxey, with him Edwin C. Amerman, for appellant.

      T. J. Davies, with him William J. Maxey, for appellees.
   Per Curiam,

This is an appeal'by the plaintiff from an interlocutory decree dissolving a preliminary injunction. In view of the facts set forth in the findings and opinion of the learned judge below, and particularly the fact that after the injunction was granted an ordinance in due form was regularly passed whereby the prior action of council was ratified, we are not convinced that the court erred.

The decree is affirmed at the cost of the appellant.


text:
    Warner v. Lehigh Valley Railroad Company, Appellant.
    April 19, 1909:

      Appeals — Quashing appeals — Certificate of trial judge as to evidence.

    Where a trial judge approves the transcript of the charge but does not sign and attach to the transcript of the evidence the certificate in the form prescribed by Rule VI or sec. 4 of the Act of May 1,1907, P. L. 135, and the evidence is not brought on the record by a common-law bill of exceptions in the established form, the appeal will be quashed; and it is immaterial as an excuse that the trial judge died before the case was called for argument in the appellate court, 'if it appears that a rule for a new trial and a motion for judgment non obstante were argued before him several months before his death.
    Argued March 1, 1909.
    Appeal, No. 59, April T., 1905, by-defendant, from judgment on verdict for plaintiff in case of Catherine F. Warner v. Lehigh Valley Railroad Company.
    Before Rice, P. L, Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Motion to quash appeal.

      James W. Piatt, with him George P. Little, for appellant.

      Edson W. Safford, with him W. D. B. Ainey, for appellee.
   Per Curiam,

The only matters assigned for error are the refusal of the defendant's point for binding instruction, and the refusal of its motion for judgment non obstante veredicto. It was absolutely essential to the determination of the questions sought to be raised by these assignments that the evidence be brought upon the record. While the stenographer transcribed both the charge and the notes of testimony, and certified to them, and the learned trial judge approved the transcript of the charge and ordered it to be filed, he did not sign and attach to the transcript of the evidence a certificate in the form prescribed by rule VI or sec. 4 of the Act of May 1, 1907, P. L. 135'; nor was the evidence brought on the record by a common-law bill of exceptions in the established form. This ordinarily would be fatal to the appeal, or at least to the right of the appellant to have the appellate court consider the assignments of error in question. Nor, if the death of the trial judge had prevented his sealing of the bill of exceptions allowed at the trial, or its equivalent, the approval and certification of the stenographer’s transcript, would the necessity of bringing the evidence on the record be obviated. Prior to our stenographer’s acts there was a mode recognized in Pennsylvania of obtaining the signing and sealing of a bill of exceptions in such a case, McCandless v. McWha, 20 Pa. 183, and we doubt not that it is available notwithstanding later legislation. Moreover, the verdict was rendered April 20, 1907; the transcript of the evidence was certified by the stenographer on May 18, and filed on May 25; the rule for new trial and motion for judgment non obstante were argued before the trial judge in the latter part of July; and his death did not occur until November. The appellee’s contention that in view of these facts it cannot be said that his death prevented the obtaining of the certificate seems to us unanswerable. It follows that the judgment must be affirmed or the motion to quash must prevail: Yoast v. Beatty, 12 Pa. Superior Ct. 219, and cases there cited.

We add that we have examined the evidence printed in the appellant’s paper-book as if it were properly certified, and conclude that it warranted the court in submitting to the jury the questions of the defendant’s negligence, of proximate cause and of the plaintiff’s contributory negligence, and that this was done in a clear, adequate, painstaking and impartial charge, of which the defendant has no just cause to complain. Hence, no injustice will result from quashing the appeal for reasons above stated, even if they be regarded as technical. But they are scarcely to be regarded as technical.

The plaintiff’s motion is allowed and the appeal is quashed.


author: Porter, J.,

text:
    Scarlett’s Estate.

      Partition — Purchase of land by widow — Act of June 1,1907, P. L. 364— Intestate law.

    1. Where an intestate dies leaving a widow and a brother to survive him, and the widow in partition proceedings under the Act of June 1, 1907, P. L. 364, purchases the land she will be entitled to one-third of the proceeds for life according to the terms of the act of 1907, and not to one-half of the proceeds for life as provided by the intestate act. The widow is not compelled to purchase the land, but if she does she takes it subject to the strict terms of the act.

      Constitutional law — Special law — Change of course of descent — Act of June 1, 1907, P. L. 364.
    2. The Act of June 1, 1907, P. L. 364, enabling a widow to bid on real estate in partition proceedings, does not violate the constitution as being a special law changing the course of descent and succession, and granting to individuals special or exclusive privileges and immunities.

      Partition — Purchase of real estate by widow — Costs-—Acts of April 27, 1864, P. L. 641, and June 1,1907, P. L. 364.
    3. Where a widow purchases real estate in partition proceedings, under the Act of June 1,1907, P. L. 364, the costs of the proceedings are to be deducted from the fund before it is divided between the trustee for the widow, and the heir or heirs of the decedent. In this way the parties bear the burden of the costs in exact proportion to their several interests in the fund and in strict compliance with the provisions of the Act of April 27,1864, P. L. 641.
    Argued Nov. 20, 1908.
    Appeal, No. 211, Oct. T., 1908, by-Ada Moore Scarlett, from decree of O. C. Chester Co., in partition proceedings in Estate of Taylor Scarlett, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Petition for partition.
    Hemphill, P. J., filed the following decree:
    And now, October 8, 1908, the inquest heretofore awarded to make partition of the real estate of said decedent, having made return that the same could not be divided amongst the parties without prejudice to or spoiling the whole, and that they had valued the same at the sum of $7,500; subject, however, to the lien of $4,000, and certain other rights charged on said property by Abiah Scarlett, late of the county of Chester, deceased, under his last will and testament, duly probated and entered in the register’s office of said county, in Will Book C 2, vol. 28, p. 13, in favor of his widow; which return was confirmed by this court, on June 8, 1908. And proof having been made on June 29, 1908, of the due service of a rule upon the persons interested in said real estate, to appear in court on said day and accept or, refuse the same, at the appraisement, and said proof having been adjudged sufficient, Ada Moore Scarlett, widow of the said Taylor Scarlett, deceased, appeared in open court, filed her offer, in writing, to take said real estate at the sum of $8,055, subject to the said charge of $4,000, and subject also to the said rights of the widow of Abiah Scarlett, deceased, which offer or bid was $505 in excess of the valuation fixed by the inquest, and the highest and best bid offered or made for said property upon said return. The court do hereby order and adjudge the said real estate, to wit:
    All that certain messuage and tract of land in New Garden township, aforesaid, on a public road leading from the State Road, and bounded by lands of Charles Chandler, John Balder-son, James Alexander, Samuel Thompson, Mrs. Patrick Fahey, and public road, and containing 140 acres, more or less, to the said Ada Moore Scarlett, widow of the said decedent, her heirs and assigns, on condition that she shall enter into a recognizance in the sum of $16,110, conditioned to secure the costs and expenses of this proceeding, as follows: Charles W. Manley, clerk, costs, $14.00; R. Thomas Garrett, sheriff, costs, $39.30; A. M. Holding, attorney, services, $150, and also to secure and pay to the register of wills, collateral tax on' two-thirds of the balance, $261.73; register of wills, collateral tax on the present value of the portion of the proceeds upon which the widow is entitled to interest for life, $33.03; to William H. Scarlett, brother of the decedent, two-thirds of the purchase money, after payment of costs, and of the collateral tax above mentioned, $4,938:80; to-, trustee appointed by this court under the Act of June 1, 1908, P. L. 364, who shall give bond in double said amount, with sufficient surety, to be approved by the court, conditioned to pay annually, in lieu of dower, the interest upon said sum to Ada Moore Scarlett, widow of said decedent, during her life, and at her death, to pay the principal thereof to William H. Scarlett, being one-third of the purchase money, less the above costs and expenses, 12,617.24.

      Error assigned was the decree of the court.

      Alfred P. Reid, for appellant. —
    If it were not for the words, “in lieu of dower,” in the act there could be no question that the widow would be entitled to one-half of the purchase money for life, in the way above indicated. But the use of these words “in lieu of dower,” and of a general repealing clause in the act, are supposed to cut down her interest from one-half to one-third for life in case the land is allotted to her. So construed, there would be introduced into the intestate laws, these incongruities : an act enlarging her rights so that she may take and bid at the property to protect her interest, with a penalty attached that if by chance the land is allotted to her, she is deprived of the difference of the income on one-half and on one-third of the estate for life; if the heir gets the property either by taking it at a valuation, or at his bid, or it is sold, then the widow would get the income on one-half of the estate for life. Besides, if the one-half of the real estate could be set off for the use of the widow by metes and bounds, including the mansion house in severalty, for life, without prejudice to the rest, it is obliged to do so: Poundstone v. Everly, 31 Pa. 11; Bishop’s App., 7 W. & S. 251; McCall’s App., 56 Pa. 363.
    The word “dower” is to be construed as meaning dower at common law, and not the interest of the widow under the intestate act: Hinnershits v. Bernhard’s Exrs., 13 Pa. 518; Lennig’s Est., 52 Pa. 135; Gray v. McCune, 23 Pa. 447; Gourley v. Kinley, 66 Pa. 270; Bradford v. Kents, 43 Pa. 474; Leinaweaver v. Stoever, 1 W. & S. 160; Borland v. Nichols, 12 Pa. 38; Robins v. Green, 1 W. N. C. 143; Tatham v. Ramey, 82 Pa. 130; McNickle v. Henry, 8 Phila. 87; Watterson’s App., 95 Pa. 312.
    Any other construction of the act of 1907, would render it unconstitutional; as being a special law (a), changing the course of descent and succession; (b) and granting to individuals special or exclusive privileges and immunities, in violation of art. III, sec. 7 of the constitution: Schmalz v. Wooley, 56 N. J. Eq. 649 (39 Atl. Repr. 539); Herbert v. Baltimore County Commissioners, 97 Md. 639 (55 Atl. Repr. 376); Blankenburg v. Black, 200 Pa. 629; Lloyd v. Smith, 176 Pa. 213; State v. Somers Point Boro., 52 N. J. L. 32 (18 Atl. Repr. 694); Ayars’s App., 122 Pa. 266; Pittsburg’s Petition, 32 Pa. Superior Ct. 210; Com. v. Clark, 14 Pa. Superior Ct. 435; Sewickley School Dist. v. Osborne School Dist., 6 Pa. Dist. Rep. 211; Bearce v. Fairview Twp., 9 Pa. C. C. Rep. 342.
    The title gives no notice of any change in the share widows are entitled to in the estates of their deceased husbands, and is in violation of art. Ill, sec. 7, of the constitution, providing, “that no law shall be passed .... containing more than one subject, which shall be clearly expressed in a title: ” Com. ex rel. v. Samuels, 163 Pa. 283; Borough of Mt. Joy v. Lancaster, etc., Turnpike Co., 182 Pa. 581; Union Passenger Railway Co.’s App., 81* Pa. 91; Dailey v. Potter County, 203 Pa. 593.
    Such a construction would deprive the appellant of a vested right to have one-half of the property for life: Kennedy v. Nedrow, 1 Dallas, 415; Evans v. Webb, 1 Yeates, 424; McCullough v. Allen, 3 Yeates, 10; Bailey v. R. R. Co., 4 Harrington, 389.
    The costs of the partition proceedings should be paid by the widow and devisee in proportion to their several interests: Dennison’s App., 1 Pa. 201; Boyer’s Est., 8 Pa. C. C. Rep. 423.

      A. M. Holding, for appellee. —
    The act of June 1, 1907, limits every widow, who invokes its provisions, to the interest on but one-third of the proceeds of the real estate which she may-purchase: Gourley v. Kinley, 66 Pa. 270; Danhouse’s Est., 130 Pa. 256.
    Appellant’s contention that the act is unconstitutional, because a special law within the prohibition of art. Ill, sec. 7 of the constitution, is not sustained: Lehigh Valley Coal Co.’s App., 164 Pa. 44; P. & R. Coal & Iron Co.’s Petition, 164 Pa. 248; Middletown Road, 15 Pa. Superior Ct. 167; Reading v. Savage, 124 Pa. 328.

      April 19, 1909:
    Neither is the act unconstitutional because the title thereof is defective: Middletown Road, 15 Pa. Superior Ct. 167.
    Where property is sold in proceedings in partition, as in this case, it has always been the practice in Chester county to deduct the costs of the proceedings from the selling price, and then ascertain the widow’s share in the balance: Martin’s Est., 1 Ches. Co. Rep. 512; Boyer’s Est., 8 Pa. C. C. Rep. 423.
   Opinion by

Porter, J.,

Taylor Scarlett died on February 25, 1907, without lineal descendants, and leaving a widow, the appellant, and one brother, William Scarlett, the appellee. He died seized of a tract of land for the partition of which proceedings were instituted in the orphans’ court in March, 1908, and upon return of the rule upon the heirs to accept or refuse the land at the valuation thereof by the inquest; the widow availed herself of the right conferred by the Act of June 1, 1907, P. L. 364, and made an offer in writing for the land which proved to be the highest price bidden therefor above the valuation returned. The court below decreed the land to the widow at the price which she had bidden and at the same time decreed that the amount of the costs should be paid out of the purchase money; that two-thirds of the balance of the purchase money should be paid to the brother of the decedent, the appellee, and that the remaining one-third should be paid to a trustee appointed by the court, as authorized by the act of June 1,1907, and that the trustee pay the interest on said sum to Ada Moore Scarlett, the widow, during her life, and at her death pay the principal thereof to William H. Scarlett, the brother of the decedent. The decedent had left a will which was duly probated on March 9, 1907, but the widow, the appellant, had on June 11, 1907, filed her election in writing to take against the will. The appellant contends that, as the decedent left no lineal descendants, the court below should have decreed that only one-half of the purchase money of the land be paid to the brother and that the interest on the other half be secured to the widow, the appellant, during her natural life. The appellant relies upon the act of June 1, 1907, to sustain her right to bid upon the property in the partition proceeding, but asserts that under the provisions of that statute, or notwithstanding those provisions, she is entitled to the interest upon one-half of the purchase money ’during her life.

The question presented involves the consideration- of the effect of the Act of June 1,1907, P. L. 364, upon the rights of a widow who under the provisions of that statute competes in the bidding and becomes the purchaser of the real estate of her deceased husband under proceedings in partition. The act is entitled: “A supplement to an act, entitled: ‘An Act for the greater security of title and more secure enjoyment of real estate,’ approved the twenty-second day of April, one thousand eight hundred and fifty-six; so as to authorize a widow to accept real estate in partition, or compete in bidding therefor, and regulating and establishing a mode of payment therefor by the widow.” That part of the statute which is material to the question here presented is in the following words: “Where the real estate, or any part thereof, shall be allotted to the widow as the highest bidder two-thirds of the purchase money thereof shall be paid to those entitled thereto, as provided by law; the remaining one-third of such purchase money shall be paid to a trustee or trustees, to be appointed by the court, which trustee or trustees shall give bond in double the amount of the money to be received, with sufficient sureties to be approved by the court; the trustee or trustees, as aforesaid, shall pay annually, in lieu of dower, the interest on said one-third of the purchase money, to the widow during her life, and, at her death, the said trustee or trustees shall pay the said purchase money to such as are entitled by law thereto.” The statute thus expressly requires that all the purchase money shall be presently paid, two-thirds of it “to those entitled thereto, as provided by law,” manifestly meaning the heirs; and the other third to the trustee appointed by the court, the interest on said third to be paid annually, “in lieu of dower,” to the widow during her life. No provision is made, in case the widow becomes a purchaser for any part of the purchase money remaining a charge upon the land during her life. The appellant contends that the provision of the statute that the payment of the interest on one-third of the purchase money to her during life shall be “in lieu of dower,” must be confined to her right of dower at common law, and cannot be held to include the entire interest of the widow in the land conferred by the statutes of this state. The primary difficulty with this contention of the appellant is that if given effect it would entirely nullify this provision of the statute. The interest of a widow in the real estate of her deceased husband is not technically dower, but she takes that interest as a substitute for dower and, in the language of the statutes which give and define the interest, “in lieu of dower.’’ If the statute is to be given the technical construction contended for by the appellant, the payment of interest on one-third of the purchase money is in lieu, only, of dower at common law and is not to be considered as a substitute for the statutory interest of the widow in the land of the deceased husband; as the widow does not have the technical estate of dower in the lands, she would, therefore, receive this payment of interest instead of a right which she did not possess. The argument carried to its logical conclusion would mean that she should receive this interest on one-third of the purchase money and, in addition, the interest on one-half of the purchase money. While the interest of a widow in the Pennsylvania land of which her husband died seized is not strictly and technically dower, it is an estate of freehold for life, in common parlance called dower, and we frequently find it in our judicial decisions called statutory dower. The manifest intention of the legislature was that this payment of interest on one-third of the purchase money to the widow was to be in lieu of her interest, as widow, in the land.

The contention of the appellant that this construction of the statute renders it unconstitutional, as being a special law changing the course of descent and succession, and granting to individuals special or exclusive privileges and immunities, is without foundation. The title of the act contained express notice that the substance of the statute regulated and established a mode of payment for the land by the widow, when she became a purchaser; and a mode of payment necessarily implies provisions as to when, how and to whom the money shall be paid. The act is general, it applies to all proceedings in partition and confers a right upon all widows, to be in all cases exercised in the same manner and upon the same conditions. It impairs no right which a widow had in the lands of her deceased husband under pre-existing laws. None of its provisions impose any duty or obligation upon a widow, unless she voluntarily avails herself of the benefit of the statute. If she does not wish to become a purchaser under the provisions of this statute, she may let the proceeding take its course and insist upon all the benefits conferred upon her by pre-existing laws. This act gave her a new right to acquire a new title; she may assert it or not, as she elects. She must take it, if she elects to take it, on the terms provided.

The suggestion of the learned counsel for the appellant that: “The draughtsman of this act seems to have had in mind, only, the class of widows who are entitled to one-third of the real estate of the deceased husband, for life,” and that the statute does not fit this case may, or may not, be well founded; but the language of the act is free from ambiguity and we must take it as we find it. The legislature may have been persuaded that, when they conferred upon the widow the power to divest the title of the heir, the right and interest of a widow who exercised this power should be definitely fixed and all widows, in the exercise of the power, placed upon the same footing.

The court below directed the costs of the proceeding to be first paid out of the purchase money. The effect of this was to deduct two-thirds of the costs from the amount presently payable to the appellee. The other third of the costs was taken out of the fund to be paid to the trustee, the result of which was to diminish proportionately the amount of interest which the widow would annually receive and, also, the amount which at the death of the widow will be payable to the appellee. This required the parties to bear the burden of the costs in exact proportion to their several interests in the fund and was an exact compliance with the provisions of the Act of April 27, 1864, P. L. 641.

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