author: Morrison, J.,

text:
    Shuman's Estate.

      Appeals—Decedents’ estates—Insolvent estate—Heir at law.

      1. An heir at law of an adjudicated insolvent estate, has no standing to appeal from the allowance of a creditor’s claim against the estate, where, even if the claim were disallowed, the balance would not be sufficient to pay the other creditors. The heir in such a case is not a “person aggrieved” within the meaning of the Act of March 29, 1832, P. L. 190.

      Decedents’ estates—Claim against estate—Evidence—Successive accounts—Practice, O. C.

    2. The fact that the creditor of a decedent’s estate has not been able to prove by competent testimony his claim at the audit of the first account of an executor, will not prevent him from offering such proof, if he has secured it, at the audit of a second account of the executor.

      Appeals—Assignments of error—Question not raised in assignments.

    3. Where a question of law was not raised in a lower court, or in the assignments of error, or in the statement of the question involved, it will not be considered in the appellate court.

      Evidence—Admissions—Decedents’ estates.

    4. An admission made by a creditor of a decedent’s estate that his claim would not exceed a certain amount, does not estop him from presenting and proving by competent testimony his real claim. Such admission will merely militate against his credibility and the bona Mes of his account.
    5. Testimony as to admissions are to be received with great caution and scrutiny.

      Decedents’ estates—Claim against—Payment—Periodical payments.

    6. The doctrine of the presumption of periodical payments to servants for domestic services is not applicable to a superintendent of lumbering operations employed at a stipulated price per day, who was not paid at stated intervals, and who had various other dealings with the decedent apart from the contract of employment.
    Argued Dec. 5, 1910.
    Appeal, No. 23, Oct. T., 1910, by John W. Shuman, from decree of O. C. Northampton Co., dismissing exceptions to auditor’s report in estate of Charles Shuman, deceased.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Exceptions to auditor’s report. Before Stewart, J.
    The facts are stated in the opinion of the Superior Court.

      Errors assigned were in overruling exceptions to auditor’s report.

      C. F. Smith, of Smith, Paff & Laub, for appellant.—
    The testimony ¡hows that the services of Schafer which he performed at the stave mill consisted of giving orders, taking the time of the men and helping himself to erect the engine and boiler house, which were all services consistent with those performed by ordinary laborers or servants, and nothing done by him according to the testimony elevated him to that confidential relation which distinguishes the servants controlled by the presumption and those who are exempt from the presumption of periodical payments: Taylor v. Beatty, 202 Pa. 120; Webb v. Lees, 149 Pa. 13; Hayes’ Est., 17 Pa. Superior Ct. 412.
    The admissions of Schafer were conclusive against him: Mueller’s Est., 159 Pa. 590; Truby v. Seybert, 12 Pa. 101.

      A. Mitchell Palmer, with him F. W. Edgar, for appellee.
    —The appellant has no standing in the court: McAllister’s App., 59 Pa. 204; Stineman’s App., 34 Pa. 394; Mellon’s App., 32 Pa. 121; Craig’s App., 38 Pa. 330; Sharp’s App., 3 Grant, 260; Gallagher’s App., 89 Pa. 29.
    The doctrine of the presumption of periodical payment for domestic services, rendered the decedent, does not apply under the facts of this case: Taylor v. Beatty, 202 Pa. 120; Schrader v. Beatty, 206 Pa. 184.
    March 3, 1911:
   Opinion by

Morrison, J.,

The two reports of the auditor, confirmed by the court below, sustained legal claims against the estate of Charles Shuman to the amount of $31,186.48. The balance of the estate for distribution was $10,353.91. With some corrections and allowances the dividend allowed the creditors by the final distribution was 33.2 per cent. The appellant is a son and heir of the deceased.

The first question prominently brought to our attention by counsel for appellee is the right of the appellant to maintain this appeal. The Act of assembly of March 29, 1832 P. L., 190, 213, under which the appeal is taken, provides: “Any person aggrieved by a definitive sentence or decree of the orphans’ court, may appeal from the same to the Supreme Court,” etc. It is difficult for us to see how the appellant is legally aggrieved. If he honestly believes that the appellee’s claim is unjust he may be aggrieved in his feelings but that is not within the meaning of the act of assembly. The estate of the decedent being all converted into money and distributed and only paying 33.2 per cent of the creditor’s claims, what harm did it do appellant when the auditor and the court below found that the appellee had a legal claim against the estate of $338.59, and allowed him a dividend thereon of $112.41. If we should sustain this appeal and send the case back to have the distribution corrected, the only possible result would be a small increase in the dividend of the other creditors. It is beyond all question of doubt that the appellant could not receive one cent out of the estate of his father, as an heir.

The law is well settled that an accountant cannot appeal from a decree distributing the fund in his hands or directing bim to pay over a distributive share. He is not a person aggrieved: McAllister’s App., 59 Pa. 204. The same rule applies to an executor: Stineman’s App., 34 Pa. 394, to an assignee or trustee: Mellon’s App., 32 Pa. 121; Craig’s App., 38 Pa. 330, and to an administrator: Sharp’s App., 3 Grant, 260; Gallagher’s App., 89 Pa. 29. The obvious reason for the above rule is, that having no financial interest in the fund, the accountant cannot be aggrieved by the decree of the lower court as to how that fund shall be distributed. Surely an heir of an adjudicated insolvent estate has no more interest in the fund than the accountant.

No creditor filed any exceptions to the allowance of appellee’s claim, nor, so far as the record shows, is any creditor now complaining of the allowance of said claim. We are of the opinion, on the undisputed facts, that the appellant was not legally aggrieved by the distribution of his father’s estate and therefore he ought not to be permitted to maintain this appeal.

However, we have examined the record with care and we are of the opinion that the auditor and the court below did not err in sustaining the appellee’s claim to the amount stated in the distribution. At the first hearing before the auditor the appellee presented his claim, among other items which were allowed, for services as superintendent for Charles Shuman about his lumbering operations. The learned auditor found from the testimony that the appellee did render such services to the decedent in his lifetime and that the services were worth $2.00 per day, but for the reason that appellee failed to prove by competent evidence the number of days he was employed his claim in that respect was not then allowed to share in the fund for distribution. In passing upon that question the learned court below said: “It may be that on a second hearing, the claimant will be able to prove, by competent testimony, the number of days he was at work,” and in the decree the court said: “Corrections indicated above to be noted by the accountant and corrected by the auditor when the second account is referred to him.”

The fund for distribution at the second audit was a different fund from the one distributed by the auditor at the first hearing, and it seems obvious that the failure to prove the number of days claimant worked for the deceased was no bar to the claimant to present his additional proof and have his claims allowed out of the second fund.

In Cowan v. Gonder, 5 Phila., 15, Judge Hare said: “The better opinion would seem to be, that an adjudication by an auditor appointed to examine and report upon the accounts of an executor or administrator is a judgment simply in rem, which, like other judgments of the same nature, is limited to the fund with reference to which the adjudication is made, and does not bind or conclude the parties in any subsequent controversy which may arise between them with reference to any fund or thing which although of the same nature is not the same.” While the above authority is not binding upon us we consider it a correct statement of the law upon the question. But be that as it may the present appellee’s claim was not rejected at the first audit and his right to present the same at the second audit was expressly saved to him by the learned court below. Therefore we conclude that the appellee had the right to present his claim for $2.00 per day as superintendent at the second audit and the learned auditor specifically found a certain number of days’ labor at $2.00 per day in his favor and after deducting sums which had been paid to the appellee by the decedent, allowed him the balance. Upon this question there was an abundance of testimony to sustain the auditor’s finding and that finding having been approved by the court below in a careful opinion and decree we will not disturb it. Moreover, there was no exception to the auditor’s report on the second distribution raising the question of the conclusiveness of the adjudication by the first distribution. It is alleged that counsel for the estate and for the heir, appellant, never contended in the court below, that the adjudication of the first distribution was res adjudicata of appellee’s claim, and no assignment of error raised that question in this court. That question not having been raised in the lower court, or in the assignments of error, or in the statement of the question involved, it will not be considered in the appellate court: Bousquet’s Est., 206 Pa. 534.

Counsel for appellant contend with much earnestness that appellee admitted to himself and Mr. Charles Shuman that his whole claim against the decedent’s estate would not exceed $140.00. Mr. Paff, appellant’s counsel, made himself a witness and testified to that effect and put himself in conflict with appellee’s version of the fact. It is very clear from appellee’s testimony that he denied making any such admission and claimed that what he did say was in substance that he could not give the amount of his account at that time and that he was to make up his statement and send it to him. This matter being in dispute it was for the auditor who saw and heard the witnesses to determine their credibility and the weight of their testimony and to find the facts, and it does not appear at all clear that appellee intended to convey the idea that the estate did not owe him to exceed $140.00. In such a case it is very easy to misunderstand admissions alleged to have been made by a party. It has been often held that testimony as to admissions should be received with great caution and scrutiny. In McCarty v. Scanlon, 187 Pa. 495, Archbald, J., whose opinion was affirmed by the Supreme Court, said: “The defense which is interposed in this case is based largely upon admissions alleged to have been made by the plaintiff to Margaret Scanlon, the defendant, and the rule of law is that such evidence should be received with great caution and scrutiny. There is no doubt about that.”

But suppose the appellee did tell the appellant and Mr. Paff that he thought his account would not amount to more than $140.00, and that he subsequently found that it was much more, such admission would not estop him from presenting and proving by competent testimony his real claim. It is true that such admission, if believed, might militate against his credibility and the bona fides of his account. But when all of his testimony was presented it would be for the auditor to find as a fact how much, if anything, the estate was indebted to the appellee. And we here remark that the auditor seems to have held the appellee to the production of ample testimony to sustain his disputed claim. There is only one other question presented which we care to comment upon. That is the doctrine of the presumption of periodical payments to servants for domestic services. Counsel for appellant contend vigorously that such presumption arose in regard to appellee’s claim as superintendent and that the burden was cast upon him to overcome that presumption by clear and convincing testimony. The first answer to that is, that appellee proved by several witnesses that he was not an ordinary servant but that he was employed as superintendent at a stipulated price per day. That he was a man of experience in lumbering operations. That he served as superintendent at the mill and in the woods and that he furnished teams and hired teams of others to do Shuman’s work. That he boarded Shuman’s carpenters at his own house, purchased out of his own funds supplies for Shuman; consulted lawyers in reference to Shuman’s titles and paid their fees; boarded Shuman’s mules, and sold him rye, oats, hay and corn; he even sold some of the finished product of Shuman’s mills and lumbering operations and gave the latter credit for what he received for lumber and railroad ties. He also kept the time of Shuman’s employees and turned it in to Shuman who paid the men through him. It is shown and conceded that appellee was not paid regularly at stated intervals but that Shuman paid him cash in February, 1905, $125; May, 1905, $35; and June 1906, $100. It would seem to us that the course of dealing between Shuman and appellee rebuts whatever presumption may have arisen by reason of the custom of employers in the neighborhood of paying their employees at regular intervals. In Taylor v. Beatty, 202 Pa. 120, Mr. Justice Mestrezat, speaking for the court, said (p. 124): “It is the character of the services rendered, and not the term applied to the person performing them that determines whether or not she is a servant within the rule that a servant’s wages are presumed to be paid periodically.” We have carefully examined the record and considered the elaborate argument of counsel for appellant, and the authorities therein cited, and, on the facts controlling appellee’s claim we are not convinced that any of the assignments of error raise reversible error. And we all agree to dismiss the assignments of error, affirm the decree, and dismiss the appeal at the costs of appellant.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Commonwealth v. Mackiewicz, Appellant.

      Criminal law—Seduction—Promise of marriage—Evidence.

    Argued Dec. 5, 1910.
    Appeal, No. 27, March T., 1911, by defendant, from judgment of Q. S. Luzerne Co., June Sessions, 1910, No. 86, on verdict of guilty in case of Commonwealth v. Stanley Mackiewicz.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Indictment for seduction. Before Little, P. J., specially presiding.
    Verdict of guilty, upon which judgment of sentence was passed.

      Error assigned was in refusing binding instructions for defendant.

      James II. Shea, with him Edward A. Lynch, for appellant.

      W. Alfred Valentine, district attorney, with him W. H.

      Gillespie, assistant district attorney, and Thomas D. Shea, for appellee.
    March 3, 1911:
   Per Curiam,

The two assignments of error are to the refusal of the defendant’s points for binding instructions, first, that the verdict must be not guilty as to the charge of seduction; and, second, that the verdict must be not guilty. It is argued, first, that the evidence of the prosecutrix negatived the charge contained in the indictment and, in effect, showed that force was used, which amounted to rape; second, that the promise of marriage was conditional; and, third, that the testimony of the prosecutrix as to the promise of marriage was not corroborated by other evidence, either circumstantial or positive. We have carefully examined the evidence relating to these three propositions and conclude that it was sufficient to warrant the submission of the essential questions of fact to the jury. No good purpose would be served by reciting the evidence in this opinion.

The judgment is affirmed.


author: Beaver, J.,

text:
    Commonwealth v. Shaffer, Appellant.

      Criminal law—Pleading—Duplicity—Indictment.

    1. Duplicity is found to exist in criminal pleadings when two or more offenses are charged in the same count of an indictment; but there is no objection to charging different similar offenses in separate counts.
    2. An indictment is sufficient where each count plainly charges the offense intended in language practically identical with that used by the legislature in defining the offense.
    3. An indictment for embezzlement is sufficient which charges that the money appropriated was placed in the defendant’s hands by certain parties named, and that it was money belonging to the prosecutors.

      Criminal law—Embezzlement—Evidence—Attorney and client.

    4. On the trial of an indictment against an attorney at law for embezzlement of a client’s money intrusted to him for the purpose of making loans, where the defendant claims that he had not only paid back all of the moneys, but also interest and profit on the same, it is proper to permit the defendant to show the dates when moneys were paid to him, the dates when he paid back moneys, the rate of interest on the loans, and the indebtedness of prosecutors to the defendant for professional services apart from the loans.
    Argued Dec. 6, 1910.
    Appeal, No. 244, Oct. T., 1910, by defendant, from judgment of Q. S. McKean Co., Feb. Sessions, 1910, No. 14, on verdict of guilty in case of Commonwealth v. H. E. Shaffer.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Indictment for embezzlement. Before Prather, P. J., specially presiding.
    The opinion of the Superior Court states the facts of the case.
    Verdict of guilty, upon which judgment of sentence was passed.

      Errors assigned appear by the opinion of the Superior Court.

      A. L. Cole, with him Thos. H. Murray, A. P. Huey, E. L. Keenan, and Herbert K. Shaffer, for appellant,
    cited: Com. v. Fahnestock, 15 Pa. C. C. Rep. 598; Com. v. Gerdemann, 11 Phila. 397.

      Guy B. Mayo, district attorney, and F. D. Gallup, with them F. J. Woods and C. W. Shattuck, for appellee,
    cited: Com. v. King, 35 Pa. Superior Ct. 454; Com. v. Barton, 20 Pa. Superior Ct. 447; Com. v. Shoener, 25 Pa. Superior Ct. 526; Com. v. Gouger, 21 Pa. Superior Ct. 217.
    March 3, 1911:
   Opinion by

Beaver, J.,

Defendant was charged, in an indictment containing three several counts, with having embezzled moneys collected by him, as attorney, belonging to M. &• L. Schriever. The several counts are practically identical, except that in the first he is charged with having “received the sum of one hundred and forty dollars from one, Joseph B. Ditz, and fraudulently appropriated the same to his own use”; in the second count, with having “received the sum of fifty dollars from one, M. N. Zeller, and appropriated it” in like manner, and in the third count, with having “received one hundred and eighty-seven dollars from one, H. J. James, and having fraudulently appropriated it.”

The manner in which the offense is charged in the indictment is in its essential parts: “That H. E. Shaffer, attorney at law of said county, on the eighteenth day of August, in the year of our Lord, one thousand nine hundred and eight, at the county aforesaid, and within the jurisdiction of this court, being then and there in the employ of Mary Schriever and Lizzie Schriever, partners as M. & L. Schriever, as their attorney, and as such attorney entrusted with large sums of money belonging to said firm, for the purpose of making loans, and as such attorney collecting and receiving for safe custody the property and moneys of said M. & L. Schriever, did by virtue of such employment, then and there, and while so employed as aforesaid, receive and take into his possession one hundred and forty dollars ($140.00) from one Joseph B. Ditz, of moneys belonging to said firm of M. & L. Schriever, being paid to the said H. E. Shaffer by the said Joseph B. Ditz, on account of a loan negotiated and made by the said H. E. Shaffer, to the said Joseph B. Ditz, of moneys of the said M. & L. Schriever, and for and in the name and on account of the said M. & L. Schriever, employers, and did then and there unlawfully, fraudulently, and with intent to defraud the said M. & L. Schriever, convert and appropriate to his own use the said one hundred and forty dollars ($140.00) contrary to the form of the act of the General Assembly in such cases made and provided, and against the peace and dignity of the Commonwealth of Pennsylvania.”

It is alleged by the defendant that this indictment will not sustain the judgment of conviction entered by the court, first, because it contains counts charging different offenses, and, second, that it is bad, because of duplicity.

There is no duplicity. That is found to exist when two or more offenses are charged in the same count of an indictment, but there is no objection to charging different similar offenses in separate counts. We held in Com. v. Gouger, 21 Pa. Superior Ct. 217, that “It cannot be objected in error, or on demurrer, or in arrest of judgment, that two or more offenses of the same nature, on which the same or similar judgments may be given, are contained in different counts of the same indictment.” This wás followed in Com. v. Shoener, 25 Pa. Superior Ct. 526, and also in a case determined at this term—Com. v. Kleckner.

Nor is the objection that “The indictment does not sufficiently charge an offense under the 114th section of the Penal Code” of March 31,1860, P. L. 382, valid. By the code itself, it is provided that “Every indictment shall be deemed and adjudged sufficient and good in law, which charges the crime substantially in the language of the act of assembly prohibiting the crime, and prescribing the punishment, if any such there be,” etc. In accordance with this provision of the code, we have uniformly held, as in Com. v. Sunderlin, 31 Pa. Superior Ct. 349, that “An indictment is sufficient where each count plainly charges the offense intended in language practically identical with that used by the legislature in defining the offense.”

It is also alleged that the indictment does not charge that the money specifically intrusted by M. & L. Schriever to the defendant was converted by him to his own use, with intent to defraud, etc. It is true that it is not alleged that the money said to have been appropriated by the defendant was placed in his hands by M. & L. Schriever, but that the money alleged to be fraudulently appropriated by him was money paid to him by the parties named, being the money belonging to them, the said M. & L. Schriever, and this is sufficient to maintain the charge.

We find no substantial defect in the indictment. The several counts clearly set forth the misdemeanor charged in each, and, if there were nothing else in the case, we would have no difficulty in affirming the judgment.

The first assignment of error is bad under our rules, in that it contains more than one subject, although the different reasons assigned for quashing the indictment are all contained in one motion and the act of the court in overruling it. We have briefly considered the reasons therein set forth, however, in order to show the grounds and authorities upon which our opinion as to the validity of the indictment are based.

The motion of the commonwealth to quash the appeal, because of the failure to refer to the pages upon which the offers of testimony ruled out are contained, and the failure to print the indictment, have both been remedied, so that the indictment is now found in the paper-book of the appellant, and the pages upon which the several rulings of the court complained of have been inserted. It is, therefore, entirely possible to consider the several assignments of error, without serious inconvenience, and for this reason the motion to quash is overruled.

The assignments of error from two to ten, inclusive, relate to the rejection of the defendant’s offers of evidence. These can be considered together under the formal offer and the ruling thereon, contained in the ninth assignment. The offer was:'' It is proposed by the defendant to prove, as bearing upon the good faith of the defendant, and also as bearing upon his right to insist upon a settlement of all accounts, including his own claim for services, and also as bearing upon the truthfulness of the testimony of the prosecutrix, the following facts:

"(1) The full amount of money received by the defendant from the prosecutrix, from the time his transactions began with her down to the first of June, 1909, which amounted to $147,842.74; this is to be proved by showing the date of each separate payment to him and the amount thereof, aggregating the sum just stated; (2) including the amount of money (paid) by him to her from time to time, including date of each payment, and the amount thereof, which amount aggregated $169,433.30; this to be evidenced by a statement of each payment and the prosecutor’s receipt corresponding thereto; (3) that the amount so paid by him covered the full amount paid by her to him, and ten per cent interest thereon, and about $2,000 in excess thereof.

“This testimony will be offered in connection with the testimony of the prosecutrix, showing her failure to evidence the amount of money paid by her to the defendant, and the amount of moneys received by him from her; it is also offered in connection with the testimony of the defendant as to the nature and character of the services rendered by him to the prosecutrix, and for which he received no compensation whatever. It is also offered in connection with the testimony of the prosecutrix that the amount of interest she was to receive upon moneys loaned by him was ten per cent; and further, that the payments to her included ten per cent interest up to the date when they were paid to her.

“By Mr. Gallup: This being in substance the same offer,- it is objected to as incompetent, immaterial and irrelevant for the purpose offered, and for the following special reasons: (1) It is not based upon a correct statement of the evidence in the case; (2) the defendant, being an attorney, knows that the Statute of Limitations for services would be six years, and, therefore, could not be evidence of good faith for services antedating the period of six years; that under the evidence of the defendant himself, no demand was ever made for any compensation until at a time in May, 1909, when he was as he says, mad, and at that time no amount was named; that the defendant has already testified that of the moneys he had •received to loan for the prosecutrix, there is still out $18,000.; and as constituting a defense in this case, the services for which he would be entitled to receive should be confined to services incidental to the loans in question named in the indictment.

“By the Court: Objection sustained.

“By the Court: The court will say again, we will allow you to show each loan made for the prosecuting witness by the defendant, the amount of money collected therefor and the amount of money turned over to the prosecuting witness.”

It is to be borne in mind that the indictment specifically in each count charges that the defendant “as the attorney of M. & L. Schriever was entrusted with large sums of money belonging to said firm for the purpose of making loans, and, as such attorney, collecting and receiving for safe custody the property and moneys of said M. & L. Schriever,” etc.

It is to be presumed that some significance was attached by the commonwealth to the fact that large sums of money were intrusted to the defendant for investment and collection, etc. It is not charged that these moneys were paid to the defendant by the prosecutrix and her sister in each case for separate loans, nor that each loan when collected was returned separately.

Upon the cross-examination of the prosecutrix by the defendant, the effort was made to secure from her a statement of the loans made and the amount of money loaned by the defendant in behalf of her and her sister to the several borrowers. In her examination, she was asked: “Q. During the time Mr. Shaffer was acting for you, do you know how many loans he made for you? A. I have not looked it up. Q. Do you know about? Was it in the neighborhood of 1,000 loans, or more? A. I have not looked into the matter any further than this indictment. Q. Do you know anything about that? A. I am not pretending to know. Q. Do you know, in the aggregate, how much money you gave to him to loan for you? Objected to by counsel for commonwealth as immaterial and not cross-examination. Mr. Cole: We propose to follow this by testimony tending to show that Mr. Shaffer paid back to her, in the course of their dealings, all the money that he received from her and more than $20,000 in addition to that, and to show, if necessary, her receipts for that amount of money. Objected to by commonwealth as immaterial and not cross-examination. By the Court: We think that is part of your case, to be offered in your own behalf. The objection is sustained.”

If the defendant had been allowed to present as part of his case the testimony which was here ruled out, there would have been probably no serious consequences resulting from the rejection as cross-examination of the prosecutrix of what was offered at the time and what was more distinctly and definitely offered in the formal proposition contained in the ninth assignment, which we are now considering.

In this connection, it is proper to consider the affirmation by the court of the thirteenth, fourteenth and fifteenth points of the defendant, which were:

“Thirteenth. To constitute the embezzlement it is necessary that there should have been at the time of the alleged conversion, a criminal intent, and it follows that if property or money is converted or withheld under a bona fide claim of right, and upon reasonable grounds for such claim, the conversion is not embezzlement, although the claim may not have been legally recoverable against the said property.

“Fourteenth. Before the offense of embezzlement can be made out, it must appear beyond a reasonable doubt that the defendant at the time of conversion acted with a fraudulent intent, and converted the property or money in such a way as exhibited a design to cheat and defraud the owner. Mere failure to pay over money when payable, is not enough, unless it be shown beyond a reasonable doubt, that such failure was accompanied by such fraudulent intent.

“Fifteenth. An attorney at law has a lien on a general balance from loans and collections in his hands belonging to his client, for services and expenditures connected with said loans, in the absence of any apportionment of said services and expenditures among said loans, and until such lien is discharged he is not liable to a prosecution for embezzlement of such money or balance.”

We are in entire accord with the propositions thus laid down by the defendant and affirmed by the court, but the defendant could get but little, if any, benefit from the affirmation of these points, when the testimony upon which they were based had been rejected.

Assuming now that there was an intention on the part of the commonwealth to attach importance to the fact that the prosecutrix and her sister had placed large sums of money in the hands of the defendant for use under their contract with him as their attorney, for making loans, and in view of the fact that the prosecutrix was not allowed to be examined as to the amount so intrusted to him, the number of loans and other pertinent inquiries in regard thereto, and in view of the particularity with which the offer which we are now considering was made, and the offer that the date of each separate payment to the defendant and the date of each payment to the prosecutrix, to be shown if necessary by her receipt corresponding thereto, and that the amount paid by the defendant to the prosecutrix was in excess of the amount received by the defendant for her account, to be loaned, together with ten per cent interest thereon, which was shown by her to be her contract with the defendant, and in view of the further fact that the plaintiff claimed, and proposed to show, that the prosecutrix and her sister were indebted to him for professional services outside of the loans so made, we are of opinion that the offer should have been received. The latitude which the court was willing to allow, as expressed at the time: “The court will say again, we will allow you to show each loan made for the prosecuting witness by the defendant, the amount of money collected therefor and the amount of money turned over to the prosecuting witness,” does not seem to us to have been sufficiently wide. It eliminated entirely the defendant’s claim for professional services and moneys expended on his clients’ account and for their benefit. It is not shown, conclusively at least, that each proposed loan was given to the defendant by the prosecutrix, nor did it appear that each loan was accounted for separately. The defendant paid moneys at different times, as we understand the testimony, covering different loans, and the accounts between them could have been satisfactorily reached by showing the moneys received by the defendant and the amount paid to the prosecutrix and her sister in settlement of the amount loaned on their account by the defendant, together with interest on the same from the time each loan was made until it was returned, and that is what the offer proposed.

The court seemed to have been suspicious that the offer was intended to go far afield and, in his opinion upon the rule for a new trial, he goes farther and says: “As a matter of fact, there never was any desire or intention on the part of defendant’s counsel, to offer the papers and receipts in evidence. The persistent offer and argument of defendant’s counsel was to' prove that the defendant’s agency, attorneyship or trusteeship, had been a profitable one for his client, and that he had turned over to the prosecutor as many dollars as'he had received, and a large profit or interest thereon.”

This does not seem to us to be justified by the facts as they appear. The offer seems to have been made in good faith. The aggregate amount acknowledged to have been received by the defendant was, of course, subject to contradiction by his client, as was also the amount paid, but the offer was to exhibit the receipts of the client to show that the gross amount was what was alleged in the offer, and that they accounted for all the loans which he had made, together with ten per cent .interest up to the actual time of the payments. This, of course, was more than an offer to show a profitable business connection between the client and her attorney. It was in effect, or at least the defendant could have been held under the terms of the offer, to make such an exhibition to the jury as the court intimated it was willing to allow. As the court said, when the same subject was under consideration in the cross-examination of the prosecutrix: “We think that is part of your case, to be offered in your own behalf,” and yet, when offered, even more specifically and with the ground laid by the testimony of the prosecutrix for contradiction, or at least for explanation, it seems to us it was even more than at the time of the rejection of the offer as cross-examination a part of the defendant’s case. It assumes even greater significance and importance, when viewed in connection with the affirmation of the defendant’s thirteenth, fourteenth and fifteenth points which have been quoted in full. An admission of the offer, coupled with an admonition by the court that it was to be presented as to detail in the manner indicated by the court, would have tested the sincerity of the counsel and would have kept the matter entirely within the control of the court, as, of course, it was.

The defense of the defendant was based upon the fact that, considering the professional services which he had rendered on behalf of the prosecutrix and her sister and the moneys paid out by him on their behalf in the conduct of their business, in such an amount as would absorb and more than absorb the specific amounts alleged to have been embezzled by him, as shown in the several counts of the indictment, his clients would have been actually indebted to him instead of his having appropriated any of their money for his own use. The truth of this proposition was affirmed by the court in a theoretical way in affirming the points of the defendant, but, having shut out the testimony which related thereto, there was nothing, of course, upon which the truth of this point could be seriously argued or definitely established. We think, therefore, that the defendant was really harmed and his defense practically uprooted by the failure to admit the offer, as contained in the ninth assignment of error. This is the important point in the case and outside of it we find no harmful error. If the question which it raised were eliminated, there would probably be no reversible error.

The language of the court, in imposing the sentence, is objected to and is objectionable.. The sentence, as imposed, would seem to indicate that the defendant had been convicted of larceny. This, although technically incorrect, might have been remedied by a reversal, sending the case back for a resentence in accordance with the facts, but, because of the rejection of the plaintiff’s offer, to which we have given the most serious consideration, his defense was practically shut out, and it is therefore necessary to have the case retried in order to give him the benefit of the evidence offered.

Judgment reversed and a new venire awarded.

Rice, P. J., Head and Porter, JJ., dissent.


author: Rice, P. J.,

text:
    Reichard’s License.

      Appeals—No actual controversy—Liquor law—Transfer of license.

    1. If pending an appeal an event occurs which renders it impossible for the appellate court to grant any relief, the appeal will be dismissed.
    2. An appeal from an order transferring a liquor license will be dismissed if it comes on to be heard after the license has expired.
    Argued Dec. 6, 1910.
    Appeal, No. 283, Oct. T., 1909, by D. G. Yuengling & Son, from order of Q. S. Schuylkill Co., transferring liquor license in petition of C. Edward Reichard.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Petition for transfer of liquor license.
    The opinion of the Superior Court states the case.

      Error assigned was order transferring the license.

      \ E. D. Smith, for appellants.
    No appearance nor printed brief for appellee.
    March 3, 1911:
   Opinion by

Rice, P. J.,

This is an appeal from an order of the quarter sessions transferring the retail liquor license of Charles E. Herbert to C. Edward Reichard. The appellants are D. G. Yuengling and Son, who filed a remonstrance to the transfer. They claimed to have leased the premises from the owner and sublet them to Herbert. The order was made on November 3, 1909, and on December 13, 1909, after hearing arguments of counsel the court refused a rehearing. This appeal was taken ten days later and came on to be heard at the regular time for hearing appeals from Schuylkill county in December, 1910. Even if the appeal had been advanced and heard at the first sitting of the court after it was taken it could not have been heard before the expiration of the license, which was in February last. It is apparent from the foregoing statement that no actual controversy which could be effectually disposed of in this proceeding was pending at the time the appeal was heard or could have been heard. The case, therefore, comes within the general rule, that if pending an appeal an event occurs which renders it impossible for the appellate court to grant any relief the appeal will be dismissed. This question of practice is more fully considered in the opinion herewith filed in Commonwealth ex rel. McCarty v. Cairns, post, p. 000. See also Cheong Ah Moy v. United States, 113 U. S. 216. It is argued that the general rule ought not to be applied here because the order, unless reversed, would deprive the appellants of the remedies provided by the lease, particularly as to their personal property. We have given due consideration to this suggestion, but are unable to conclude that the order is such an adjudication as can in any way debar them of any rights or remedies for the recovery of the possession of the leased premises or their personal property.

The appeal is dismissed without costs to either party.


author: Shay, P. J., Henderson, J.,

text:
    Commonwealth ex rel. v. Horan.

      Principal and surety—Bond of commonwealth—Tax collector’s bond—■ Judgment—Subrogation—Receipt to sheriff—Reference to auditor—Act of April BO, 181¡8, P- L. ALÍ.

    1. Where a school district enters a judgment on a bond of a tax collector in the name of the commonwealth, and thereafter a vendee of a surety on the bond who had paid the county money due by the collector to the county, secures an order of court subrogating herself to the rights of the county, although the county had commenced no action, the court may subsequently strike off the order of subrogation in so far as it affected the school district, and the vendee is not entitled as a lien creditor either to tender her receipt to the sheriff for a part of the purchase money, or to have the matter referred to an auditor as provided by the Act of April 20, 1846, P. L. 411.
    2. Subrogation is an equitable remedy and its application is regulated for the advancement of justice; but it is not available to overcome a greater equity, or one equal only to that of the party seeking to be subrogated.
    Argued Dec. 6, 1910.
    Appeal, No. 289, Oct. T., 1909, by Ellen Buckley, terre-tenant, from order of C. P. Schuylkill Co., July T., 1906, No. 280, sustaining exceptions to sheriff’s special return in case of Commonwealth ex rel. School District of Girardville Borough v. Thomas Horan et al.
    Before Rice, P. J., Henderson, Morrison, Or-lady, Head, Beaver and Porter, JJ.
    Affirmed.
    Rule to set aside execution.
    Exceptions to sheriff’s return.
   Shay, P. J.,

filed the following opinion:

We delayed the decision on the above rule and exceptions, pending the decision of the Superior Court in Com. v. Horan, 39 Pa. Superior Ct. 575. After that decision was rendered other and important matters so pressed upon us that we were unable to take up the disposition of the above rules until now.

We prefer to be very brief. Ellen Buckley purchased a property from Michael Horan, in 1906, who was one of the sureties on the bond of Thomas Horan, tax collector for the borough of Girardville. Various phases of this controversy have already been disposed of and finally the school district issued a vend. ex. levied upon the property of the said Michael Horan with notice to Ellen Buckley, terre-tenant.

She had paid to the county of Schuylkill the amount due them and was subrogated to their rights, and had herself subrogated by order of court on the judgment of the school district, which we afterwards, on rule, struck off, and which action was subject of appeal, supra.

The county of Schuylkill had never up to time of sale, and, so far as we know, to the present time, reduced their claim to judgment, so Mrs. Buckley was never a lien creditor.

. The rule to set aside the vend. ex. entered by her as above is, briefly stated, that the judgment of revival was irregular and void. Without citing authorities, we say a judgment cannot be attached in a collateral proceeding, nor by one not a party to the judgment.

Also, after sale and signing the conditions, payment of money, etc., she is now too late: McQuillan v. Hunter, 1 Phila. 49; Bailey v. Wagoner, 17 S. & R. 327; Chillas v. Snyder, 1 Phila. 289; Pennsylvania Co. v. Scott, 1 W. N. C. 232.

[Second: The exceptions to the sheriff’s special return are, briefly, that the sheriff accepted the receipt of the said Ellen Buckley as a lien creditor for a part of the purchase money, and that the said Ellen Buckley had no lien. This is true, since we struck off the order of subrogation as we above said, and, in consequence, the exceptions must be sustained.] [2]

[Now, November 8, 1909, the rule of the purchaser at the sheriff’s sale is set aside, the vend. ex. is discharged, the exceptions to the sheriff’s special return are sustained and the sheriff is directed to make his regular return according to law.] [3]

Errors assigned were (1-3) portions of opinion as above, quoting them, and (2) the court erred in not appointing an auditor to make a report, distributing the proceeds of such sale, and to determine whether the purchaser was entitled as a lien creditor to tender her receipt for the amount which, as appeared from the record, she was entitled to receive from the proceeds of sale.

William Wilhelm, for appellant.

George M. Roads, with him M. A. KilJcer, for appellee.

March 3, 1911:

Opinion by

Henderson, J.,

It was decided in Com. v. Horan, Buckley’s Appeal, 39 Pa. Superior Ct. 575, that the present appellant was not entitled to be subrogated to the rights of the county of Schuylkill in the judgments obtained by the school district of the borough of Girardville v. Horan et al., which judgments had,been obtained on the penal judgment entered in the name of the Commonwealth against Horan, tax collector, and his sureties. It is not necessary to restate the facts which were involved in that case as they are fully set forth in the report of the case. It was this aspect of the record to which the court below undoubtedly referred in saying that “Mrs. Buckley was never a lien creditor.” The matter of the assignment to her of judgment No. 282, July Term, 1906, by the school district was not then involved nor under consideration. It follows that the appellant had no standing to assert a prior lien on the proceeds of the sheriff’s sale by reason of the claim of the county assigned to her. It is equally true that as to the judgment above recited she was not entitled to receive any part of the proceeds of the sale for she had already paid that judgment as appears from her petition dated December 31, 1906, on which a rule for subrogation was obtained. As between the school district and herself the judgment was paid and she was not entitled to divide with the district the fund made by it on its other executions against the same defendants. Subrogation is an equitable remedy and its application is regulated for the advancement of justice. But it is not available to overcome a greater equity or one equal only to that of the party seeking to be subrogated. It was in the power of the court, therefore, in granting the rule and decreeing the subrogation to limit the effect of the decree conformably to the suggestions of equity and justice. The only object of the subrogation was to keep alive the judgment for the purpose of demanding contribution from the codefendants of Horan from whom the appellant had acquired title and the rule for subrogation limits its object to that effect.

It is asserted, however, that the question should have been determined by a reference of the case to an auditor in accordance with the provisions of the Act of April 20,1846, P. L. 411, and this would be true if the appellant had been a lien creditor. The first section of that act provides that whenever the purchaser of real estate at orphans’ court or sheriff’s sale shall appear from the proper record to be entitled as a lien creditor to receive the whole or any portion of the proceeds of the sale it shall be the duty of the sheriff, administrator, executor or other person making such sale to receive the receipt of such purchaser or purchasers for the amount which he or they would appear from the record to be entitled to receive. The appellant’s difficulty with reference to this branch of the case is that it did not appear from the record that she was entitled as a lien creditor. On the coptrary the record showed that the judgment, which she claims is entitled to participate with the judgments of the school district, had been paid in full by her and was eliminated from the case so far as the distribution of the proceeds of the sale was concerned. Having paid this debt she had nothing left on which to claim against the land sold by the execution of the appellee. It is only where the purchaser appears from the proper record to be entitled to receive the whole or a part of the fund as a lien creditor that the act applies. The sheriff’s return was evidently made on a misapprehension of the facts and when the matter was properly brought to the attention of the court this mistake was corrected. The point is made in the argument of the learned counsel for the appellant that Mrs. Buckley as terre-tenant was not notified by scire facias of the revival of the judgments of the school district and that therefore her land was freed from the liens. But that question does not arise in this case. We are considering a question of distribution not of title to real estate. The whole case is based on the fact that a fund has been raised by a sale of land of one or more of the defendants in the execution, and the question before the court below was whether the appellant appeared from the record to be a prior lien creditor and therefore entitled to give a lien creditor’s receipt to the sheriff. If her property was not subject to the lien of the judgments by reason of the failure to bring her in as a terre-tenant when the judgments were revived she must assert whatever rights she may have in some other proceeding.

The decree is affirmed.


author: Head, J.,

text:
    Bruch, Appellant, v. Shafer.

      Contract—Joint contract—Signature of parties—Failure to sign— Parol evidence.

    Where a joint contract in writing shows on its face that it is to be signed by two persons as parties of the first part, and one person as party of the second part, and one of the parties of the first part refuses to sign after the other two persons had signed, the instrument is ineffective, and all parties are discharged. If in such a case the party of the first part who had signed the agreement and who paid over money to the party of the second part, brings an action to recover said money, he may show by his own parol testimony that he was induced to advance his own money on the express promise of the defendant that if the written agreement should not become operative by reason of the failure of the other party of the first part to sign it, the money should be refunded. Such a parol agreement is entirely outside and independent of the written agreement, and if believed by the jury is sufficient to sustain the plaintiff’s claim, although it is contradicted by the defendant, and is not supported by the evidence of another witness.
    Argued Dec. 6, 1910.
    Appeal, No. 24, Oct. T., 1910, by plaintiff, from judgment of C. P. Northampton Co., Sept. T., 1908, No. 53, on verdict for defendant in case of Grover Bruch v. Howard S. Shafer.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Assumpsit to enforce an agreement to refund money. Before Scott, P. J.
    The facts are stated in the opinion of the Superior Court.
    The court charged, inter alia, as follows:
    But one of those questions that have been thus in dispute is a matter for my determination and not yours, and that is the point in dispute between these parties as to whether there was an express agreement that the money should be returned upon failure of the brother to sign the agreement. There can be no recovery upon the part of the plaintiff upon that ground under any testimony that has been submitted here. [1]
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned amongst others was portion of charge as above, quoting it.

      C. F. Smith, of Smith, Paff & Laub, for appellant.—
    The agreement to refund the $1,300 because they were paid before the agreement provided is not antagonistic to the clause which provides that the $1,300 shall be paid at the time of the signing of the agreement: Steel v. Loeb, 5 Pa. Superior Ct. 238; Close v. Zell, 141 Pa. 390; Martin v. McCune, 8 Pa. Superior Ct. 84; Parcell v. Grosser, 109 Pa. 617; Nye v. Pittsburg Co., 2 Pa. Superior Ct. 384; Bartley v. Phillips, 165 Pa. 325.
    If it is understood that a contract signed by two parties is also to be executed by a third party there is no contract until this is done: 9 Cyc. 282; Arnold v. Scharbauer et al., 116 Fed. Repr. 492; Finney v. Finney, 1 Pearson, 70; Centenary M. E. Church v. Clime, 116 Pa. 146; Martin v. Kline, 157 Pa. 473.

      Robert A. Stotz, for appellee,
    cited: Brawdy v. Brawdy, 7 Pa. 157; Fuller v. Law, 207 Pa. 101; Phillips v. Meily, 106 Pa. 536; Columbia Ave. Trust Co. v. King, 227 Pa. 308.
    March 3, 1911:
   Opinion by

Head, J.,

The defendant was the owner of a bottling business with the necessary machinery and equipment to operate it. Negotiations were begun between him and the plaintiff looldng to the purchase of this property by the latter and his brother, John Bruch, who resided in the city of Boston. Some correspondence had passed between the brothers, as a result of which John Bruch gave his assent to join in the proposition as he understood it. Upon what representations, if any, made by Shafer to the plaintiff and transmitted by him to his brother, the assent of the latter was secured, we need not here stop to inquire.

There is scarcely room for a doubt that it was contemplated and agreed by the plaintiff and defendant that when their negotiations had reached a basis of mutual understanding the agreement was to be committed to writing which was to be signed by the three parties who were to be bound by it. Accordingly such an instrument was drawn up by counsel selected for that purpose and a copy of this instrument was attached to the pleadings and is part of the record of the case. It declares in unmistakable terms, on its face, that it was to be signed and sealed not only by the plaintiff and defendant but by John Bruch as well. It recites that "Grover Bruch and John Bruch have agreed to buy the said stock, etc.” It provided for a transfer of the license of the defendant to the two individuals named. It obligated both of them to execute and afterwards to pay certain notes evidencing part of the consideration, and it particularly obligated John Bruch individually “to assign two life insurance policies of $1,000.00 each ” as collateral security for the payment of the said notes. A place was prepared for his signature and seal. It is not pretended that the plaintiff ever entertained or manifested any intention of entering into this deal by and for himself. The mutual understanding of both the parties who were negotiating was that there were to be three parties to the agreement. When the paper was drawn up it was signed by the defendant, then by the plaintiff, and turned over to the latter to be forwarded by him to Boston for the signature of his brother. The latter, having made some investigations of his own, reached the conclusion that the value of the property had been overestimated. He refused to sign the paper, retained it in his own possession and thereafter would have nothing further to do with the transaction.

Under these circumstances we are unable to escape the conclusion that the agreement in writing contemplated both by plaintiff and defendant was never fully executed. In Finney v. Finney, 1 Pearson, 70, the legal principle is well stated in the following language: “When a joint instrument is drawn to be signed by several, and one fails to sign, all are discharged. It is otherwise in the case of a joint and several instrument, a security for an antecedent debt, or when the parties signing knew that fewer than the whole number were to sign.” Again, in 9 Cyc. 282, it is thus stated: “If it is understood that a contract signed by two parties is also to be executed by a third party, there is no contract until this is done.” Whatever then were the rights and obligations of the several parties at that time, they cannot be fairly said to have been conclusively fixed by the terms of the written instrument which was never completely executed.

Now the agreement, as written, provided for the payment of $1,300 in cash when the instrument was signed. It is clear enough that this payment, by the very terms of the instrument, did not become due until the agreement was signed. The plaintiff’s contention, however, is that the defendant was anxious to get this money immediately to enable him to use it in the purchase of an automobile. Whilst, of course, it was not expected that John Bruch would refuse to execute the agreement when it reached him at Boston, some days would necessarily elapse before it could be returned executed. The plaintiff alleges and testifies that the defendant urged him to advance this money out of his own funds without waiting for the completion of the contract. While not unwilling to accede to this request of the defendant, and thus anticipate the time of payment provided in the agreement, the defendant says that his then expressed willingness and the subsequent furnishing of the money by him were induced and brought about by a distinct collateral and independent promise of the defendant, thus stated in the plaintiff’s testimony: “I asked Mr. Shafer, well now suppose this agreement is drawn up and my brother refuses to sign, I can’t carry this thing alone. What about this money? And he distinctly told me in case my brother refused to sign, that money was to be returned to me.”

Whether or not such a promise was made and became the inducing cause for the advancement of $1,300 by the plaintiff, were, of course, questions of fact to be deter-' mined by the jury after a proper submission of them by the court. If such parol contract were made, it was entirely outside and independent of the written agreement. It could not be of course said that it was omitted from the agreement by fraud, accident or mistake, because it was no part of it. It was not intended to be. It was a wholly collateral arrangement, between the plaintiff and defendant only, without any reference to the parties to the written contract.

There was nothing in the nature of this contract, if it were made, to require it to be in writing. It was in no way contradictory of the terms of the written agreement because it would have been fully completed and its purpose served at the moment the latter was fully signed. The testimony of the plaintiff himself, if credited by the jury, was therefore entirely competent to support a finding that such contract had been made; and if it were, the plaintiff had a cause of action against the defendant wholly apart from anything contained in the partially executed written contract. We think the learned trial judge fell into error therefore in regarding the case of the plaintiff as one seeking to alter or contradict the terms of a written agreement duly executed by the parties to it, and in determining as matter of law that the testimony of the plaintiff was insufficient in law to establish the promise on which he rested his claim.

It is argued that the whole subject-matter of the negotiations between the defendant and the plaintiff was personal property, and therefore the law did not require their agreement to be put in writing. This we may concede, but we are not concerned with what the parties legally could have done. Their rights and duties are to be measured rather by what they clearly agreed to do and undertook to perform. They agreed that there was to be a contract in writing; they agreed it was to be signed by the three parties to be bound by it; and it did not become an executed contract in writing until the signatures of all the parties were attached thereto, or until each one had so asssented to it that the law would regard his act as equivalent to his signature.

It is also urged upon us that the correspondence by letter and telegram between the two brothers warranted the conclusion that the present plaintiff was fully empowered to act for both. It is clear, however, that the plaintiff did not pretend to have authority to sign and seal for his brother the agreement in writing which was drawn up. He did not undertake to execute it for anyone but himself, and we can find nothing in the testimony which would warrant the conclusion that the defendant contemplated anything else than that the paper was to be sent to Boston, as it was, to be actually signed by John Bruch. Wé are unable to find, therefore, in this unexecuted written instrument any warranty for the conclusion that it operated as a bar to the present action of the plaintiff, if the jury should accept as true his version of the manner in which he was induced to part with his money.

Of course it does not follow from anything we have said that the plaintiff’s version of the manner in which he parted with his money was necessarily the true one. The defendant insists that no such arrangement or promise was in fact made. That he and the plaintiff regarded the contract as executed, at least for all practical purposes; that the money that was paid was not in anticipation of the cash payment called for, but was in fact that payment, made in pursuance and performance of the contract; and that the plaintiff could recover it only by justifying a recission of a written contract thus far executed. There is considerable confusion in the record owing to the fact that distinct issues, instead of being regarded as separate and alternative lines of attack or defense, were treated as interchangeable at pleasure. For much of this the plaintiff is responsible because his statement of claim and his testimony throughout exhibit lack of clearness of thought and precision in statement as to the foundation of his claim and thus the duties of the learned trial judge were made unnecessarily complicated and difficult.

But through the entire record there runs the continuous thread of the plaintiff’s claim that before the written contract was executed by all of the parties to be bound by it, he was induced to advance $1,300 of his own money on the expressed promise of the defendant that if the written agreement should not become operative, by reason of the failure- of one of the parties to sign it, the money should be refunded and the status quo ante of the parties restored. On the issue of fact thus tendered he was entitled to be heard by the jury.

The third, fourth and fifth assignments of error relate to the instructions contained in the general charge on the subject of the alleged mispresentations of the defendant as to the nature and extent of his business. In these instructions we find no error. The first assignment, however, for the reasons we have indicated, must be sustained.

Judgment reversed and a venire facias de novo awarded.


author: Oklady, J.,

text:
    Commonwealth v. Tresca, Appellant.

      Evidence — Witness — Competency ■—■ Oath — Belief in God — Libel —Criminal law—Act of April 88,1909, P. L. llfi.

    1. Under the Act of April 23, 1909, P. L. 140, the opinions of a witness on matters of religion are not to be made a subject of inquiry for the purpose of affecting either his competency or credibility.
    2. Where the defendant in a prosecution for criminal libel offers to take the oath and states that it will be binding upon him, he is qualified to be sworn, although he refused to state that hé believes in a God.
    Argued Dec. 5, 1910.
    Appeal, No. 99, April T., 1911, by defendant, from judgment of Q. S. Allegheny Co., September Sessions, 1910, No. 148, on verdict of guilty in case of Commonwealth v. Carlo Tresca.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Indictment for libel. Before Carnahan, P. J.
    At the trial when the defendant was called the district attorney made the following objection:
    I object to the administration of an oath to this witness for the reason that he does not believe in the existence of a God who will punish him if he testifies falsely, and I ask leave to sustain my statement by competent testimony.
    Mr. Davis: Mr. Tresca is willing to take'the oath.

      The Court: You had better ask him.
    Mr. McElroy: I will not ask him the question because I think it would be ground for exception if I did. I submit, it has been expressly ruled by the courts of this country that it is not to be proved by the man himself but by other witnesses. I make the objection that he should not be permitted to take the oath because he does not believe in the existence of a God who will punish him if he swears falsely, arid I offer to sustain my objection by competent testimony.
    The Court: I think the witness is at liberty to state, is entitled to be examined on that subject first, under these various decisions here.
    Mr. McElroy: Do you want his counsel to examine him?
    Mr. Davis: “Q. Mr. Tresca, are you perfectly willing to take an oath? A. Yes, why not?”
    Mr. McElroy: “Q. Do you believe in the existence of a God? A. I refuse to answer; I believe in an oath. Q. Do you believe in the existence of a God who will punish you if you take a false oath? A. Anybody who will take a false oath will be punished. Q. By God? A. I refuse to answer.”
    The Court: How do you expect me to get along with that kind of testimony. What is the use of him taking an oath.
    Mr. Davis: “Q. Do you believe in a Supreme Being? A. Yes, sir. Q. What do you mean by Supreme Being? A. As the force that regulates the things of the world. Q. Which is expressed and known by the name of God, is that right? A. Anybody can call this force as they wish. I can call it a Supreme Being without calling it God. Q. And if you take an oath you will be responsible to the Supreme Being?”
    Mr. McElroy: Object to the question as grossly leading.
    The Court: I think he has said enough to settle the matter. Anybody that does not believe in a God and responsibility to a God who will punish him if he swears falsely, is not going to have the oath administered to him here and testify.

      The objection to the competency of the witness to be sworn is sustained. To which ruling defendant excepts, exception allowed and bill sealed. [1]
    Verdict of guilty, upon which the prisoner was sentenced to pay a fine of $300 and undergo an imprisonment of nine months in Allegheny county jail.

      Error assigned was the action of the court in refusing to permit the defendant to be sworn.

      Ralph C. Davis, with him Rody P. Marshall, for appellant.

      Wm. A. Blakeley, district attorney, Harry H. Rowand, assistant district attorney, and Robt. T. McElroy, for appellee.
    March 3, 1911:
   Opinion by

Oklady, J.,

When this defendant was being tried on a charge of criminal libel, he was called as a witness in his own behalf. The district attorney objected to his competency for the reason, “that he does not believe in the existence of a God who will punish him if he testifies falsely.” His examination was as follows: “Mr. Tresca, are you perfectly willing to take an oath? A. Yes, why not? Q. Do you believe in the existence of a God? A. I refuse to answer. I believe in an oath. Q. Do you believe in the existence of a God, who will punish you if you take a false oath? A. Anybody who will take a false oath will be punished. Q. By God? A. I refuse to answer. Q. Do you believe in a Supreme Being? A. Yes, sir. Q. What do you mean by a Supreme Being? A. As the force that regulates the things of the world. Q. Which is expressed and known by the name of God. Is that right? A. Anybody can call this force as they wish, I can call it the Supreme Being without calling it God.”

The witness was held to be incompetent by the court, and was withdrawn. The trial resulted in his conviction and this is the sole error assigned.

It is not necessary to review the decisions and legislation on this question which has vexed the courts and legislatures since the formation of our government, as it has been definitely settled by the Act of April 23, 1909, P.. L. 140; the second section of which provides that “Hereafter the capacity of any person to testify in any judicial proceeding shall be in no wise affected by his opinions on matters of religion.” And section third “No witness shall be questioned, in any judicial proceeding, concerning his religious belief; nor shall any evidence be heard upon the subject, for the purpose of affecting his competency or credibility.” The fourth section is as follows: “Hereafter the affirmation may be administered in any judicial proceeding instead of the oath, and shall have the- same effect and consequences, and any witness who desires to affirm shall be permitted to do so.” By the Act of May 21, 1885, P. L. 23, the defendant, at his own request but not otherwise is to be deemed competent as a witness, and by the act of 1909, his opinions on matters of religion are not to be made a subject of inquiry for the purpose of affecting either his competency or credibility. The test of competency as established in Cubbison v. M’Creary, 2 W. & S. 262; Blair & Hutton v. Seaver, 26 Pa. 274, and other cases has been radically changed by this act of 1909, and its language is broad enough to remove, all incompetency by reason of any religious belief. We have nothing to do with the wisdom of this legislation and accept it as a legislative direction. The general credibility of the witness, independent of his religious principles, is still left for the consideration of the jury, believe what he may and swear how he will. The court having refused to permit him to be sworn, he was not obliged to offer to take the affirmation as a substitute for the oath he was willing to take, and which he asserted would be binding on his conscience, he should have been permitted to be sworn and testify. This right having been denied him, the judgment is reversed and a new trial awarded.


author: Oklady, J., Morrison, J.,

text:
    Adams v. Lehigh Valley Transit Company, Appellant.

      Negligence—Street railways—Automobile—Contributory negligence.

    In an action against a street railway company to recover damages for injuries to an automobile, the case is for the jury and a verdict and judgment for plaintiff will be sustained, where there is evidence of negligence on the part of the defendant, and where the plaintiff’s evidence shows no contributory negligence on his part, although his testimony is in conflict with that of some of his own witnesses, and with that of witnesses for the defendant.
    Argued Dec. 6, 1910.
    Appeal, No. 30, Oct. T., 1910, by defendant, from judgment of C. P. Lehigh Co., Oct. Term, 1908, No. 26, on verdict for plaintiff in case of Homer Adams v. Lehigh Valley Transit Company.
    Before Rice, P. J., Henderson Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for injuries to an automobile. Before Heydt, P. J., specially presiding.
    The circumstances of the accident are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $462.07. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      Arthur G. Dewalt, for appellant.
    It is well established by numerous cases, that it is the duty of the driver of a vehicle to look at the edge of the track just before he goes upon it, and this is an imperative duty upon him, which is absolute and continuing and a failure to perform it is negligence per se: Sontum v. Mahoning & Shenango Railway Co., 226 Pa. 230; Ehrisman v. Ry. Co., 150 Pa. 180; Trout v. Ry. Co., 13 Pa. Superior Ct. 17; Brown v. Traction Co., 14 Pa. Superior Ct. 594; Burke v. Union Traction Co., 198 Pa. 497.

      Marcus C. L. Kline, with him Edwin K. Kline, for appellee.
    The case was for the jury: Woelfel v. Ry. Co., 183 Pa. 213; Thompson v. Traction Co., 180 Pa. 114; Hochheiser v. Rys. Co., 226 Pa. 316; Davidson v. Traction Co., 4 Pa. Superior Ct. 86; Gilmore v. Ry. Co., 153 Pa. 31; Rauch v. Smedley, 208 Pa. 175; Mackey v. Traction Co., 227 Pa. 482; Barto v. Traction Co., 216 Pa. 328.
    March 3, 1911:
   Opinion by

Oklady, J.,

The plaintiff while driving his automobile, in which he had his wife and child with two guests, was run down by a car of the defendant company.

The accident occurred in clear daylight, when the plaintiff and motorman had an unobstructed view of the track for a reasonable distance. The defendant had a double track system located on the northern side of the highway, so as to leave a width of about fifteen feet on the southern side for vehicles. A few minutes prior to the accident the plaintiff was running his automobile parallel with the trolley car, and as it made a stop to take on passengers, he passed the trolley car, and when he was ahead of it about 1,700 feet, his use of the roadway was interfered with by a horse and buggy, and obliged him to turn his machine so as to occupy the near trolley track, in order to get around the buggy. After running on the car track for a distance, which is variously estimated by the witnesses from seventy-five to 125 feet, and when he was opposite to the buggy, the trolley car struck the automobile, forcing it along the track a distance of about seventy-five feet, and then threw it off the track to the side of the road, while the trolley car proceeded about 175 feet, up an incline grade, before it was stopped.

The plaintiff knew the car was following him as he had passed it but a short distance, but did not know the length of time it would remain standing where he left it out of his then view. He testified, that just before entering upon the track, when he had a clear view along it for at least 100 feet he looked and not seeing any car in sight, or hearing any signal, passed onto the rail, while going at a rate of close to fifteen miles per hour; that it was necessary for him to go on the car track to get around the vehicle in front of him, as its driver turned his buggy so as to give him the trolley side of the road. At the time of the collision the trolley car was running at a rate of about twenty-five miles per hour. These measurements and speed rates were approximated, but the examination of the witnesses made them as certain as such unreliable estimates are capable of being made definite. It must be conceded that the trolley car was running at a much higher speed than the automobile, else it would not have overtaken it, but it was upon its own track, and had the right to use it at such a rate of speed, as would under the circumstances be called a reasonably safe one. The plaintiff knew that a car would pass the place every few minutes according to their schedule, so that both drivers were obliged, under the law, to be attentive to their duties and respect the rights of others by regulating their speed to the exigencies of the case. The motorman knew the car track was likely to be occupied by another vehicle, as the planes of the car track and public road were the same. He was obliged to have his car under control so as to bring it to a full stop at a safe distance, if he was suddenly placed in a position of peril either to his car or to a person on the track.

The testimony was extremely conflicting, and even the witnesses called by the plaintiff did not confirm his statements or estimates as to distances, location or speed, but, under authority of Kohler v. Penna. R. R. Co., 135 Pa. 346, which was a case where there was a serious conflict in the testimony of the plaintiff and one of his material witnesses, the court held “Irrespective of the apparent doubt upon Buckwalter’s testimony, the plaintiff himself made a case for the jury clear of contributory negligence. The effect of that cage was not completely overthrown by the variance in the testimony of another witness, even though such testimony had been direct and positive. If the plaintiff’s own testimony had shown that he was negligent, he could not complain if the court took his case as he made it, although another witness had done better for him than he had for himself; but, where his own testimony made out a clear case, the contradictory testimony of another witness would not destroy it as a matter of law, even though such witness had been called by himself. Possibly the jury might believe plaintiff’s account rather than of' his witness, and he was entitled to have them do so if they would:” Buck v. McKeesport, 227 Pa. 10. There was too much of apparent and actual contradiction in the whole testimony to have warranted the trial judge in saying that the motorman was not guilty of negligence in driving the car as he did, so as to produce the results that were not seriously in dispute. Whether the speed was due to recklessness on his part, or on account of inefficient equipment of the car in its brake appliances is not material. The impact given to the automobile and the distance the car ran before it was brought under control were sufficient in themselves to indicate that the speed, in view of the circumstances, was excessive. Nor could the court, under the positive and direct testimony of the plaintiff, say that he was guilty of contributory negligence, in occupying the car track at the grade and speed testified to when no car was in sight and he had no signal of its approach. The degree of care to be exercised by each, under such circumstances, must necessarily vary, and as there is no unbending rule of law, that ever has or ever can be laid down to determine them, the solution of the controlling questions of fact, and the inferences to be drawn from them are to be referred to a jury, under proper instructions, as well as the credibility of the witnesses who are called to establish the controverted facts: Davidson v. Traction Co., 4 Pa. Superior Ct. 86, 89, and the cases referred to therein; Rauch v. Smedley, 208 Pa. 175; Mackey v. Traction Co., 227 Pa. 482; Barto v. Traction Co., 216 Pa. 328; Sontun v. Railway Co., 226 Pa. 230.

The rule laid down in Trout v. Railway Co., 13 Pa. Superior Ct. 17; Brown v. Traction Co., 14 Pa. Superior Ct. 594; Burke v. Traction Co., 198 Pa. 497; Callahan v. Traction Co., 184 Pa. 425, and many similar cases has not been, nor should it be, relaxed in any degree, but to apply it, the testimony should be of such quality and ch¡aracter as to enable the court to arrive at a legal conclusion without hesitancy or doubt.

The facts in this case make it a close one but it is so on its facts, and not in regard to the law applicable to them.

The case was tried with extreme candor on each side, and was submitted to the jury in a charge so fair and adequate, that defendant’s counsel does not complain of it, save in refusing to give binding instructions to find for the defendant on legal propositions.

The judgment is affirmed.

Morrison, J.,

dissenting:

Our brother who writes the majority opinion says, “that the facts in this case make it a close one.”

In my opinion the undisputed facts convict the plaintiff of contributory negligence. He had been driving his automobile along the highway in close proximity to one of defendant’s cars which was going in the same direction as the plaintiff. In fact the testimony shows that the trolley car and the automobile ran side and side for a considerable distance when the former stopped to take on passengers. The plaintiff sought to establish by his testimony that the trolley car was running much faster than his automobile. But he admits that they both ran at the same speed for a considerable time and when the trolley car stopped to take on passengers the plaintiff drove his automobile upon the trolley track when he admits that he could not see over 100 feet back along the track. The plaintiff admits that he was running his automobile from fifteen to twenty miles an hour and it is highly improbable that the trolley car was running at a much greater speed within a few moments after it stopped to take on passengers. It does not appear from the testimony that the plaintiff was under any necessity whatever to leave the dirt road and go upon the trolley track a few rods ahead of the, car which he was bound to know would follow him as soon as the passengers were taken on. The reason the plaintiff gives for going upon the track is that he met a team. But it is perfectly apparent that he could have checked his speed and passed this team without going upon the track. In my opinion, in the circumstances disclosed by the testimony, the plaintiff was clearly guilty of contributory negligence in leaving the road provided for automobiles and other vehicles and going in front of the trolley when he knew it was very close in his rear. In such case he cannot recover: McCracken v. Traction Co., 201 Pa. 378. In that case it is said in the syllabus: “A person who is struck by a car of a street railway company in crossing its tracks cannot relieve himself of the charge of contributory negligence by proving the unlawful speed of the car, where the car was within his view just before he reached the track, if he looked.”

In the present case it is perfectly clear from the plaintiff’s own testimony that he knew about where the car was when he drove upon the trolley track. It seems to me that what happened was the thing that any sane person might reasonably have anticipated in case the motorman lost control of his car or it ran faster than the plaintiff’s automobile. I think this case, upon its facts, is controlled by Speakman v. Phila. & West Chester Traction Co., 42 Pa. Superior Ct. 558, and cases therein cited.

I would reverse the judgment without a venire.


author: Scott, P. J., Per Curiam,

text:
    Breinig v. Oldt, Appellant.

      Wills—Devise—Trust and trustees—Rule in Shelley’s case.

    Testator gave and devised to his son two farms “to have and to hold the same, possess and enjoy the same for and during the period of his natural life, the said life estate not to be subject to any debts, engagements or liabilities which he may contract in future or may have contracted in the past. Upon the decease of my said son the principal or the two farms of land aforementioned shall vest absolutely in the heirs of the body of my said son share and share alike forever. And in case of the death of any one or more of said heirs of the body of my son, prior to said son’s death, such one share or shares shall vest in their respective issue or heirs of their respective bodies.” Held, that the son took an estate in fee simple in the land devised to him.
    Argued Dec. 7, 1910.
    Appeal, No. 98, Oct. T., 1910, by defendant, from judgment of C. P. Northampton Co., April T., 1910, No. 22, for plaintiff on case stated in suit of Joseph S. G. Breinig and Mary A., his wife, v. Charles F. Oldt.
    Before Rice, P. J., Henderson, Morrison, Or-lady, Head, Beaver and Porter, JJ.
    Affirmed.
    Case stated to determine the marketable title to real estate.
   Scott, P. J.,

filed the following opinion:

The question in the case submitted is whether the plaintiff has a good and marketable title to convey in fee simple a certain parcel of real estate included in this devise by his father’s will dated May 26,1903, and probated in 1906.

“Item. I give and devise unto my son, Joseph S. G. Breinig, my real estate,, wheresoever the same be situate, including the two farms in Allen Township, Northampton County, Pa., containing two hundred and fifty acres more or less; to have and to hold the same, possess and enjoy the same for and during the period of his natural life, the said life estate not to be subject to any debts, engagements or liabilities which he may contract in future or may have contracted in the past. Upon the decease of my said son Joseph G. Breinig the principal or the two farms of land aforementioned shall vest absolutely in the heirs of the body of my said son share and share alike forever. And in case of the death of any one or more of said heirs of 'the body of my son, prior to said son’s death, such one share or shares shall vest in their respective issue or heirs of their respective bodies.”

Under the facts stated, if the plaintiff has a title in fee, judgment is to be entered for him in the sum of $250, otherwise for defendant. It is not set forth who was living at the death of the testator or now, but the devisee is the living party plaintiff.

It is urged that there is here an interest in the nature of a spendthrift trust and the creation of an' equitable estate which will not unite with a legal one in a fee simple title by operation of the rule in Shelley’s case: Xander v. Easton Trust Co., 217 Pa. 485.

There is no trustee named to hold the life- estate, nor is the executor invested with any functions other than the usual and ordinary administration and settlement: Sheets’ Est., 52 Pa. 257, 266. It is the case simply of a devise to plaintiff of an absolute legal freehold estate with a purpose expressed to prevent it from being subject to sequestration from his debts. This cannot be done: Hahn v. Hutchinson, 159 Pa. 133; Ehrisman v. Sener et al., 162 Pa. 577; Kaufman v. Burgert, 195 Pa. 274. “A man shall not be the real owner of property with the full right to deal with it as he pleases, taking the full income of it to his own exclusive use and keep the same free from the claims of his creditors. What he cannot do for himself in this regard, cannot be done for him by another. When the grant comes from another, and yet has these incidents, it is as obnoxious to the foregoing objections as when it arises upon his own grant to third persons as trustees for him:” Hahn v. Hutchinson, 159 Pa. 133, 141. This rule was reasserted and the authority of this case approved in Wanner et al. v. Snyder, 177 Pa. 208, but not applied, because the life tenant was not the absolute owner of the legal estate; and again in Nolan v. Nolan, 218 Pa. 135, .under a deed of settlement in trust. The rights of creditors are not involved in the present dispute, but as it was recently said in Morgan’s Est. (No. 1.), 223 Pa. 228, where a spendthrift trust for a husband was created by the will of a married woman, and the trustee named was required to convey in fee upon demand of the donee, the husband took an absolute estate in fee simple, because the result is not dependent upon the exercise of the right. “It determines the quality of the donee’s estate.”

By an unbroken line of decisions some things are definitely settled in respect to the application of the rule in Shelley’s case in the limitation over of an estate expressed to be for life. It is not employed to discover an intention of the testator; but if it be first ascertained from the will that it was his intention to designate the “heirs” or “heirs of the body” qua heirs of the devisee or grantee instead of becoming the root of a new line of descent pointing thus to heritable succession and not individual acquisition, then it is inflexibly applied as a rule of property irrespective of his actual purpose, and no matter how plainly he may have expressed it: Doebler’s App., 64 Pa. 9.

A devise to one for life, with remainder to the “heirs of his body,” without further limitation or description, is to be taken as conclusive of his intention that they shall take as heirs of the devisee, and such a remainder over to his “child” or “children” is presumptively a title by purchase. The context sometimes may show it clearly to be otherwise. But the limitation here is to the heirs of the body “share and share alike.” Estates tail descended as at common law and were not embraced within the intestate Act of April 8, 1833, P. L. 315, nor the earlier ones of 1705 and 1794: Guthrie’s App., 37 Pa. 9.

If this were a limitation over to the “heirs” importing an estate in fee, instead of one in tail, these words of distributive modification “share and share alike” would have no significance. When the law of primogeniture was discarded this word in Pennsylvania was not limited to the heir at common law, but refers to our system of descent and remainder-men would take distributively in any event under the intestate law: Physick’s App., 50 Pa. 128, 136; Nice’s App., 50 Pa. 143; Steiner v. Kolb, 57 Pa. 123; Ogden’s App., 70 Pa. 501, 509; Appeal of Cockins & Harper, 111 Pa. 26; Carson v. Fuhs, 131 Pa. 256.

It is maintained, however, that as estates tail descended as at common law and were not included in the acts providing for intestacy, a direction that the heirs of the body of the devisee should take share and share alike would mean nothing if it were not intended they should take as a new root of succession and thus by pinchase from the testator, rather than as heirs by descent from the devisee. But it has always been held that this and similar provisions for division, in the absence of further limitation, are sufficient to overcome the presumption that the testator in the employment of the technical phrases which create an estate tail intended his testamentary disposition to have his legal effect: Curtis et al. v. Longstreth, 44 Pa. 297; Nice’s App., 50 Pa. 143, 148; Guthrie’s App., 37 Pa. 9,17. Whatever importance attached to such qualification upon devises in England (vide Physick’s App., 50 Pa. 128, 136) can have no application here since the Act of April 27, 1855, P. L. 368, sec. 1, converting an estate tail into the absolute interest of a fee simple, “and as such shall be inheritable and freely alienable,” the descent of which for all estates devised since the enactment must be comprised within the intestate law of 1833. The reasons, therefore^ which have been given in a multitude of cases for declaring that words of distributive modification alone shall not prevent the application of the rule in Shelley’s case to invest the devisee with a fee, must as well be referable now to that which before the statute would have been an es^ tate tail. In many of the earlier cases and in some of the later ones, it will be noted as they are read that although the decisions may be sometimes comparatively recent they are based upon devises where the testator’s will took effeet prior to 1855. In Guthrie’s App., 37 Pa. 9, 17, Mr. Justice Strong assumes that such words would lose their effect in illustrating the intention of the testator if a fee tail was embraced in the intestate law of 1833 for distribution, and then proceeds by elaborate discussion to show it was not.

There is, however, in this will a superadded limitation which, together with these words of equal division it is supposed determines, according to some of the authorities, that the remainder-men take as purchasers and defines the estate of the plaintiff as one for life: Findlay v. Riddle, 3 Binn. 139; Abbott v. Jenkins, 10 S. & R. 296; Nebinger v. Upp, 13 S. & R. 65; Powell v. Board of Domestic Missions, 49 Pa. 46; Robins v. Quinliven, 79 Pa. 333. “Alone, neither of them is sufficient:” Nice’s App., 50 Pa. 143, 148. One important observation is to be made about such as are now cited in addition to other reference again, that the will in each was probated before the act of 1855, except in Robins v. Quinliven, 79 Pa. 333, in which it was conceded that if the testator by the word “issue” meant “heirs of the body,” as primarily it does, the devisee took an estate tail. If the words “share and share alike” have no significance since an estate tail is included in the statutory law of descent, they add nothing now to the effect of the further limitation over, and “superadded words of limitation alone have always been held insufficient:” Physick’s App., 50 Pa. 128, 136. The addition of nought to any factor does not give it further efficiency than it had before acquired. But in each one of the cases submitted or examined where the two combined were held sufficient to convert a limitation over to the heirs of the body into a life estate, as expressed in the will, the superadded limitation alters or narrows in some particular the course of descent: George v. Morgan, 16 Pa. 95; Hileman et al. v. Bouslaugh, 13 Pa. 344. It is thus illustrated by Mr. Justice Strong in Powell v. Board of Domestic Missions, 49 Pa. 46, 53: “In Backhouse v. Wells, 1 Eq. Cas. Abr. 184, pl. 27, cited in 1 Fearne on Remainders (4th Am. ed.), 153, a devise to one for life only and after his death to the ■issue male of his body, and to the heirs male of the bodies of such issue was held to be an estate for life in the first taker. Here the presumption arising from the use of the word issue was rebutted by the restrictive word only attached to the gift of the life estate, and by the fact that words of limitation were added to the devise in the remainder to the issue male. These circumstances would have been entirely insufficient had the devise to the remainder-men been to them by the words ‘heirs of the .body.’ ” To bring a devise within the rule in Shelley’s case, the limitation in remainder must be to the heirs, in fee or in tail, as a nomen collectivum for the' whole line of inheritable blood: Kuntzleman’s Est., 136 Pa. 142. This result is produced by the superadded words of limitation here; and irrespective of the act of 1855, as the law of primogeniture has no existence in Pennsylvania, the limitation of one equal share to each heir of the body of the devisee, and in case of the prior decease of any, then to his heirs of the body does not alter the course of descent as if the word “heirs” alone had been employed. In Grimes v. Shirk, 169 Pa. 74, where many cases are largely discussed in an opinion by Judge Livingston, which the Supreme Court characterized as able and exhaustive, “tenants in common” as words of distributive modification together with a superadded limitation were held insufficient to prevent the operation of the rule that the tenancy for life was enlarged into a fee. It has been cited with approval many times since by both appellate courts, and Challis in the Law of Real Property, 134, summarizes the fundamental propositions established by the rule in Shelley’s case, one of which is “The further addition to the word ‘heirs’ of words of limitation to their heirs does not prevent the application of the rule, if the latter heirs are of the same description as the former heirs: Shelley’s Case, 1 Coke, 93a; 1 Fearne on Remainders (4th Am. ed.), .181, Y. 26; 1 Pres. Est. 347.”

We have, therefore, without these additions which do not extend its meaning, a devise for life to the plaintiff with remainder to the heirs of his body which enlarges his tenancy for life into an estate tail, and then becomes a fee simple by the act of April 27, 1855.

Error assigned was the judgment of the court.

A. C. Ldbarre, for appellant.

C. F. Smith, of Smith, Paff & Lauh, with him Thomas D. Danner, for appellee.

W. H. Kirkpatrick, of Kirkpatrick & Maxwell, with him George R. Booth, for Jeremiah F. Hahn, guardian of the minor children of Joseph S. G. Breinig.

The operation of the rule in Shelley's case to defeat the real intention of the testator in many instances was fully vindicated as a rule of property by Chief Justice Gibson in Hileman et al. v. Bouslaugh, 13 Pa. 344, 351, and again by Judge Porter in McGregor v. Davidson, 14 Pa. Superior Ct. 230.

None of those who are designated as remainder-men are parties to this proceeding, and are not, of course, concluded by the judgment as in ejectment upon the title. It may be noted that following the decision of Grimes v. Shirk, 169 Pa. 74, upon a case stated like this, an action of ejectment was brought against a vendee of Charles F. Bright in his lifetime by the guardian of his two minor children to recover lands devised to him under the same will and identically similar clause as that of the plaintiff in Grimes v. Shirk, 169 Pa. 74, asserting their father did not have title in fee. The Supreme Court said: “The defendant having purchased the land for which ejectment was brought in reliance upon the decision of the Court in Grimes v. Shirk, 169 Pa. 74, his title cannot now be questioned:” Bright v. Esterly, 199 Pa. 88.

Now, April 18, 1910, judgment is entered for the plaintiff on the case stated and against the defendant for the sum of $250 and costs.

March 3, 1911:

Per Curiam,

The judgment is affirmed upon the clear and satisfactory opinion of the learned president judge of the common pleas.