text:
    White’s Estate.

      Will — Issue devisavit vel non — Undue influence — Husband and wife— Evidence.

    An issue devisavit vel non is properly refused where the only evidence for the contestants is that the wife of the testator said, not in his presence, but in the presence of the attending physician, that she would leave her husband if he did not execute a will in her favor, that such evidence is contradicted, and that there is affirmative evidence that the testator directed his will to be made by an attorney, that it was read to him, and approved by him, and that he gave as his reason for making it in his wife’s favor, that she had cared for and nursed him for many years, and that his children had neglected him.
    Argued March 13, 1907.
    Appeal, No. 168, Jan. T., 1906, by Wert White, from decree of O. C. Adams Co., dismissing appeal from register of wills in Estate of David McC. White, deceased.
    Before Rice, P.'J., Porter, Henderson, Morrison, Orlad y, Head and Beaver, JJ.
    Affirmed.
    Appeal from register of wills.
    Swope, P. J., filed the following opinion :
    .This is an appeal from the decree of the register admitting to probate a paper purporting to be the last will and testament of Dr. David McConaughy 'White, late of Hampton, Adams county, Pa., and the contestant asks for an issue to determine :
    1. Whether the said David McConaughy White was at the time of the execution of said instrument of sound, disposing mind, memory and understanding, and of sufficient mental capacity to make a valid will.
    2. Whether the said David McConaughy White was induced to make said paper writing by undue influence of the said Mary White or others..
    Contentions of this character always present a more than ordinary duty upon the court, for we are here required to pass upon the nature and character of the evidence in support of the petition, and under a judicial determination of the same.

      As remarked by Mr. Justice Dean in Robinson v. Robinson, 203 Pa. 400 : “ The orphans’ court of the commonwealth are especially bound to discourage litigation of this kind unless based on reliable evidence of material facts, by refusing an issue. And even where an issue is granted, if after the case has been fully developed, the court in view of the whole evidence, considers it not sufficient to sustain the material facts, it is bound to set aside the verdict.”
    The issue is of right, when the fact arising and in dispute is substantial, unless the whole evidence of the fact be so doubtful and unsatisfactory, that a verdict against the validity of the will 'ought not to be allowed to stand : Schwilke’s Appeal, 100 Pa. 628.
    The test to be applied is, would the trial judge, after a careful review of all the testimony, feel constrained to set aside a .verdict against the proponents of the will, obtained upon a fair and impartial trial, as contrary to the manifest weight of the evidence: Graham’s Appeal, 61 Pa. 43; Knauss’s Appeal, 114 Pa. 10; Sharpless’s Estate, 134 Pa. 250; Levis’s Estate, 140 Pa. 179.
    As stated by Mr. Justice Stewart in Masseth v. Masseth, 213 Pa. 434 : The question before us is whether the evidence discloses a “ substantial dispute about a material fact.”
    If it does the issue asked for should be granted. If it does not the issue should be refused.
    In reference to the sacred right of disposing of our property by will, we cannot refrain from quoting the words of Mr Justice Paxson in Cauffman v: Long, 82 Pa. 72 : “No right of the citizen is more valued than the power to dispose of his property by will. No right is more solemnly assured to him by law, nor does if depend in any sense upon the judicious exercise of it. It rarely happens that a man bequeaths his estate to the entire satisfaction of either his family or friends. In many instances testamentary disposition of property seems harsh, if not unjust, the result, perhaps, of prejudice as to some of the testator’s kindred, or undue partiality as toothers. But these are matters about which we have no concern. The law wisely secures equality of distribution when a man dies intestate. But the very object of a will is to produce ineqality and to provide for the wants of the testator’s family; to protect those who are helpless; to reward those who have been affectionate, and to punish those who have been disobedient. It is doubtless true that narrow prejudice sometimes interferes with the wisdom of such arrangements. This is due to the imperfections of our human nature. It must be remembered that in this country a. man’s prejudice is a part of his liberty. He has a right to them; he may be unjust to his childen or relatives ; he is entitled to the control of his property while living and by will to direct its use after his death, subject only to such restrictions as are imposed by law. Where a man had sufficient memory and understanding to mate a will, and such instrument is not the result of undue influence, but is the uncontrolled agí of his own mind, it is not to be set aside in Pennsylvania, without sufficient evidence, nor upon any sentimental notion of equality.”
    Having these principles in mind, and upon a very careful examination and study of all the testimony in this case, we are of opinion that the evidence submitted does not disclose a substantial dispute about a material fact; that under all the testimony we would feel constrained to set aside a verdict against this will as contrary to the manifest weight of the evidence. We must therefore refuse the issue asked for.
    Dr. White died at his home in Hampton on May 19, 1905, at the age of eighty-four years.
    Dr. White left a widow, Mary White, who is now forty-seven years of age. She was married to the doctor in 1878.
    They had no children, but Dr. White by a previous wife bad four children: Emma B. White (now Foster) and Sarah White, now of Columbus, Ohio; Herbert White, of Elwood City, la.; and Wirt White, the contesting petitioner, of Hampton, Adams county, Pa.
    When the doctor married his present widow in 1878, his children all left home. They were apparently more than displeased with this alliance of their father. Whether this was because of the great disparity as to age, or other reasons, does not appear from the evidence, but they shook the dust of their parental home from their feet and utterly abandoned both their father and his new wife.
    This desertion continued until the time of Dr. White’s death, a period of twenty-seven years, with the exception of a brief call by Mrs. Foster a few years ago, who remained but a few minutes and did not sit down. This call, we think, was one of curiosity rather than a desire for reconciliation, and when she left, the doctor said, she only called to make trouble and disturbance.
    Wirt White, the petitioner, lived in Hainpton. After this second marriage he never visited his father. He never had any conversation with him as far as the evidence shows. He did not call to see him during his last illness or attend his funeral.
    This abandonment by his children and their persistence in it, was a matter of great annoj^ance to Dr. White. He spoke at different times of their not treating him right and said they would get nothing of his estate.
    For twenty-seven years the doctor and his wife lived alone in his home in Hampton.- After he became afflicted in his lower limbs she led him to the post office and stores. In his final sickness his wife was his only nurse, and there is nothing in all the evidence to justify any other conclusion but that in all these years she was a good, true and faithful wife.
    Dr. White became bedfast or “ took his bed ” March 14,1905.
    He was a man above the average in intelligence. He was a addicted to profanity as a habit, and, as was admitted at the argument, he had his own views as to the future state.
    At the time of his death Dr. White owned a house and eight acres of ground worth not over $1,500 and personal property of the value of a few hundred dollars. This constituted his entire estate.
    On April 15, 1905, Dr. White formally executed the following brief will, which after his death was duly probated in the register’s office of Adams county:
    “ The last will and testament of David McConaughy White, of Hampton, Reading township, Adams county, Pennsylvania.
    “ I give, devise and bequeath all my estate, real, personal and mixed, of whatever nature and wheresoever situate, to my beloved wife, Mary White and appoint her as the sole executrix hereof.
    “ I desire that if her circumstances may allow it, that she would assist my sons Wirt White and Heber White, if they or either of them should come to want, so far as she may be able to help them, without prejudice to herself, but this provision is not imperative upon my wife and she is to be the sole judge as to carrying out this request and of the circumstances.
    “ In witness whereof I have hereunto set my hand and seal this 15th day of April, A. D. 1905.
    (Signed) “ David McConaughy White.” [Seal.]
    Under the evidence in this case, the fact that this will was signed by Dr. White with his full name is not without significance and should not be overlooked.
    A short time before the execution of this will Dr. White sent his wife to Mr. D. S. Chronister, Esq., that he wanted to see him on business. It is true the wife went for Mr. Chronister, but it is also true that the doctor was bedfast, that he and his wife were living alone, and she was the only person he had to send.
    Mr. Chronister called to see the doctor. The doctor detained him about an hour. They were alone together. The wife was not present. He told “ Squire ” Chronister about his family troubles. That his children had not treated him right. He said “ he had nothing except the property there, that is, the house he had .there and some personal effects,” and he said (meaning his wife) “ she would get little enough if she got it all.”
    Dr. White then dictated to Squire Chronister the character of will he wanted, and directed him “ to go to Judge McClean, dictate to him just what he said and have his will prepared according to his dictation, and if, when I returned, it was not in accordance with his wishes, I was to make arrangements with Mr. McClean that he would ’phone him, and he was to call personally to see him; come down there and see him.”
    Mr. Chronister had the will prepared by Judge McClean, and the same day took it back to Dr. White. He was alone with Dr. White ; the wfife was not present. Dr. White read the will and said : “ It is just as I told you ; it is all right.” He said that he would not sign it that evening; that he wanted “ to look over it, examine it and see that it is satisfactory.”
    Mr. Chronister further testifies : “ Some few days after that (referring to the above) possibly three or four days after that, Mrs. White told me the doctor wanted to see me; that he was now ready to sign the will.”
    When Mr. Chronister went in he was alone with the doctor. His son Chester, who was to be a witness to the will, had not arrived yet, and Mrs. White was not in the room.
    The doctor said he “ was going to sign the will now; it was all right with one exception,” he says ; he said, “ I am sorry this desire is in it (referring to requesting wife to support sons if they came to want). He said he was sorry that he put that in.” I made this remark: “ Doctor, I do not think that that-can hurt Mrs. White ; how will it affect her ? ” He did not say anything against it and said “ he would sign it.”
    “ By that Mrs. White came in ... . and he authorized Mrs. White to get the will.” She helped to raise him up ; she got the will, pen and ink, and helped him to sit in a comfortable position on the bed. Before Chester came in Mr. Chronister remarked to the doctor: “ Doctor, if you do not feel strong enough, or do not wish to write your name, you can simply make your mark.” Pie said : “ I can write my name and I am going to do it.” When Chester came in and Dr. White was about to write his name, Mrs. White said : “ The Squire says you can simply make your mark if you do not wish to write.” He said : “ Damn you, I know my own business ; I am able to write my name and I am going to do it.”
    After the will was signed and witnessed by Mr. Chronister and his son Chester, Dr. White handed the will to Mr. Chronister and told him “ to take charge of it and keep it.”
    Mr. Chronister said the doctor was as bright as a man under his circumstances could be ; he says he knew what he was doing undoubtedly.
    The contestants admit a failure to show a lack of testamentary capacity on the part of Dr. White at the time of the execution of this will, but earnestly press their right for an issue to determine whether the will was not procured by the undue influence of Mrs. White, and in this connection we are properly asked to consider the age, physical weakness and claimed mental weakness of the testator.
    Undue influence must operate upon the mind of the testator at the time the will was made, and the burden of proving it is upon those who allege it.

      As stated in Tawney v. Long, 76 Pa. 106, and approved in Robinson v. Robinson, 203 Pa. 400, “ Undue influence of that kind which will affect the provisions of a testament, must be such as subjugates the mind of the testatrix to the will of the person operating upon it, and in order to establish this, proof must be made of some fraud, practical, some threats or misrepresentations made, some undue flattery, or some physical or moral coercion employed, so as to destroy the free agency of the testatrix, and these influences must be proved to have operated as a present constraint at the very time of making the will.”
    The contents and character of the will may be evidence bearing on the question of undue influence : Patterson v. Patterson, 6 S. & R. 55; Baker v. Lewis, 4 Rawle, 356.
    The only evidence in supporting the claim of undue influence is that of Dr. Spotz, who was the attending physician of Dr. White in his last illness.
    The doctor testifies as to several conversations he had with Mrs. White:
    “ The first conversation in reference to this matter was previous to the making of the will. She told me she did not think he had made a will. He ought to have a will. He has told me he has protected her, but she don’t believe it, and asked me if I did not think she should have some protection. I told her I did.
    “In another conversation at a subsequent time, I do not remember the date, she told me she got him to make a will, he intended to send for Squire Chronister.
    “ At another conversation she told me he has made a will but refuses to sign it.
    “ Another conversation she told me he still refuses to sign it; that she got mad and she swore and told him by God if he don’t sign it, he has got to sign it, and if he don’t sign it he can lay here and she will leave.
    “Another conversation, subsequent conversation, she told me, she patted me on the shoulder, she is all right now, she is fixed, he has signed the will.” Or, as he stated later, “ I am all right, it is my way.”
    All of these conversations are denied by Mrs. White. Now, not assuming the province of the jury in determining what the truth is, but admitting all of these declarations to have been, made, does it raise such a substantial dispute as to the legality of this will, as the will of Dr. White, as should be submitted to a jury ?
    After careful consideration we feel it does not.
    This wife had the legal right to request her husband to make a will in her favor, and even to importune him so to do, if the only effect was to make his affections or sense of duty or judgment : Robinson y. Robinson, 208 Pa. 400.
    ,The only portion of the wife’s statements to Dr. Spotz, therefore, which shows undue influence on her part, was this one declaration : “ He has got to sign it and if he don’t sign it he can lay there and she will leave.”
    This was clearly undue influence, and if the interests of Mrs. White were alone involved, an issue might be granted as a rebuke of this innuendo of assertion, that she forced the execution of his will, but the primary object of our case is the- will of Dr. White.
    A man’s last will and testament is not to be set aside by the too hurried anxiety of a wife who unduly attempts to influence him to do a thing which he has arranged for, expected and fully intended to do. This is not subjugating the mind of the testator to the will of the party importuning.
    To sustain the charge of undue influence two things must be shown:
    1. The fact that undue influence was exercised.
    2. That it was effective in producing the alleged result.
    For the purpose of this case we may admit this one attempt of undue influence, but we deny the establishing of the second requisite, as clearly opposed to the weight of all the evidence.
    The testimony on the part of the exceptant even, we think, shows that Dr. White’s mind did not weaken and give away with the infirmities of his body. It shows he was assertive and brooked all character of interference with his affairs up until close to his death, at least until after the execution of his will.
    When we recall the nature of his will: That it was as he had previously declared to his friends he would make it; that it was the character of a will to be expected as his own Voluntary act, under all the circumstances.
    That the will executed on April 15, 1905, was exactly the same paper that Dr. White dictated to his friend Squire Chronister, after an hour’s private talk with him, when he acquainted the Squire with his family troubles, the treatment of his children and the amount of his estate, and then recalling all the circumstances surrounding the execution of the will; the private talk again with Squire Chronister about the one portion of the will he regretted having put in ; his being satisfied as to that, and, when it was suggested he could make his mark, he refusing so to do, and gladly giving to his last will and testament the affirmance and approval of his full name.
    In the face of all these clearly proven facts, does this one isolated threat made by Mrs. White raise a substantial dispute as to whose will this was ?
    This expression made to Dr. Spotz, who was then friendly to her and had expressed as his opinion that she ought to receive some protection, may, have been an exaggeration of the real facts.
    But admitting the threat was made to Dr. White — was it seriously made and so considered by the husband, or was it but the momentary spasm of a woman’s annoyance ? When made, in the light of all the testimony, was she not simply urging him to do what it was his wish, desire and intention to do ?
    Is there any evidence, or any circumstances from which a fair presumption could be drawn, that either in the dictation or execution of this will Dr. White was constrained to act as he did by the undue influence of his wife? We think not.
    The clear weight of all the evidence shows that in the dictation and execution of his will, Dr. White was giving expression to his own free and untrammeled choice.
    Dr. Spotz refers to a certain conversation Dr. White had with him in reference to his death:
    “ He said: ‘ When I am dead you come to see that I am dead.’ He said : ‘ Pay no attention to Mary, pay no attention to anybody; you are the only person I can put confidence in.’ He said : ‘ Pay no attention to any other doctor, see that I am dead ; Mary will be glad when I am gone.’ ”
    This is urged as a reflection on his wife, and showing Dr. White’s fear of her. This, we think, is a clear distortion of the apparent meaning of the doctor and his intention. Like many strong-minded men, Dr. White seems to have had a horror of being buried alive, and requested Dr. Spotz to see to it that he was really dead.
    April 15, 1907:
    When he said, “ You are the only person I can put confidence in,” there was no intended reflection on his wife, for he was referring only to the ability to ascertain the fact that he was really dead. Neither was there any reflection on her when he said in that connection, “ Mary will be glad when I am gone.” He was merely appreciating his old age and helplessness, and that she would be relieved of her attention and care for him when he was gone.
    This is but the reasonable construction to put upon the doctor’s request in this matter and his statements in reference to it. It also occurs to us that in this private talk in the very face of death, that if Mrs. White had constrained Dr. White to make a will against his wish, he would then have told him so. This conversation as detailed by Dr. Spotz we think- also showed a clear and active mind on the part of this testator.
    [Believing that the manifest weight of all the evidence shows that the execution of this will was the free and voluntary act of Dr. White, that the evidence discloses no substantial dispute as to that fact, and that a verdict against the validity of this will ought not to be sustained, this appeal is dismissed and the issue prayed for is refused.] [1]

      Error assigned was portion of opinion as above [1],

      S. S. Neely, with him Wm. Kersh, for appellant.

      W. Q. Sheely, with him Wm. and Wm. Arch Me Glean, for appellee.
   Opinion by

Henderson, J.,

The appellant alleged testamentary incapacity and undue influence as reasons for setting aside the instrument probated as the last will of David McC. White. On the hearing of the rule for an issue the allegation of incapacity was abandoned. The charge of undue influence was supported by the testimony of a single witness, the attending physician, who testified to declarations made by the wife of the testator who was the solé devisee. These declarations were not made in the presence of her husband, nor was any fact testified to by the witness other than the declarations referred to. This evidence would indicate that Mrs. White was anxious to have a will made in her favor and that she had told her husband that if he did not execute one she would leave him. It is not clear that this, if uncontradicted, would be sufficient to overthrow the will. It does not prove that that document was executed because of the threat. The wife had a right to urge her husband to regard her when he made his will. Such solicitation on her part would not amount to undue influence : Dean v. Negley, 41 Pa. 312; Trost v. Dingier, 118 Pa. 259. But the testimony of Dr. Spotz is contradicted by Mrs. White, and the evidence of the witnesses for the appellee shows very clearly the individual volition of the testator in the execution of the will. It was dictated to a neighbor, when the testator’s wife was not present, who was directed to take the memorandum to Judge Mc-Clban and have the will formally prepared, and after the preparation of the will it was read by the testator in the presence of Mr. Chronister and declared by him to be in accordance with his direction. He also discussed its provisions with Mr. Olewine and gave his reasons both to him and to Mr. Chronister for making it as he had. His estate was small, his wife had been his faithful companion for many years and had nursed him constantly during his illness; his children had neglected him, and these considerations influenced him to make the will as it was. The evidence is overwhelmingly in favor of its validity and the learned judge of the orphans’ court has given full, clear and satisfactory reasons for his action. An issue is of right only where there is a substantial dispute about a material fact, and where the evidence is so doubtful or unsatisfactory that the court should not permit a verdict to stand against the validity of the will an issue should not be granted. The numerous authorities cited in the opinion filed in the court below render a discussion of the subject unnecessary. The appellant wholly failed to overcome the presumption in favor of the validity of the will and the evidence presented by the appellee in support thereof.

The decree is affirmed.


source: Caselaw Access Project

author: Henderson, J.,

license: Public Domain

text:
    Hopkins, Appellant, v. Wise.

      Vendor and vendee — Payment—Evidence—Agreement to pay debt of another.

    In an action against the estate of a decedent to recover a balance of purchase money for interest in a farm which the plaintiff had conveyed to the decedent, and also for a balance of purchase money in a house and lot which the plaintiff had conveyed to another person, and which it was alleged the decedent had agreed to pay, one witness alone testified to what was due, but he failed to state the amount due on each account, and he was not able to show how it was that the decedent had agreed to pay the balance due on the house and lot. It also appeared that the deed for the house and lot was delivered more than six years before the bringing of the suit, and there was no evidence tending to show that the purchase money was not due on the delivery of the deed. Held, that the court committed no error in directing a verdict for the defendant.
    Argued March 6, 1907.
    Appeal, No. 12, March T., 1907, by-plaintiffs, from judgment of C. P. Lycoming Co., Dec. T., 1905, No. Ill, on verdict for defendants incase of Elizabeth Hopkins and J. S. D. Hopkins, her husband, and Peter F. Gruggs v. Mary M. Wise and Williard W. Wise, Administrators of the Estate of Levi S. Wise, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Be ayer, JJ.
    Affirmed.
    Assumpsit for a balance of purchase money alleged to be due on real estate. Before Hart, P. J.
    The facts are stated in the opinion of the Superior Court.
    The court gave binding instructions for defendants.
    Verdict and judgment for defendants. Plaintiffs appealed.

      Error assigned was in giving binding instructions for defendants.

      John J. Reardon, with him O. L. Peasler and W. C. Gilmore, for appellant. —
    As between the immediate parties to the transaction, the usual acknowledgment of the receipt by the vendor, of the purchase money, is evidence but not conclusive, and may be rebutted: Watson v. Blaine, 12 S. & R. 131; Hamilton v. McGuire, 3 S. & R. 355; Redfield & Rice Mfg. Co. v. Dysart, 62 Pa. 62; Baum v. Tonkin, 110 Pa. 569 ; Ball v. Campbell, 134 Pa. 602.
    April 15, 1907 :

      H. T. Ames, of Ames Hammond, for appellees.
   Opinion by

Henderson, J.,

The plaintiff’s claim was for the balance of purchase money for an undivided interest in a farm which Elizabeth Hopkins conveyed to Levi S. Wise and an undivided interest in a house and lot which she conveyed to Martín T. Wise. The purchase money for the interest in the farm amounted to $1,350, and for the interest in the lot to -$150. The balance alleged to be due on the two accounts is $300. In support of the claim she offered in evidence the deed of herself and other joint owners of the farm to Levi S. Wise. This deed contained the usual acknowledgment of the receipt of the purchase money. To overcome this receipt witnesses were called to prove declarations of Levi S. Wise made shortly before his death, and after the delivery of the deed to him, that he was still indebted to Mrs. Hopkins on account of the purchase money. The evidence was held insufficient for that purpose and the question referred to us is, does the plaintiff’s evidence establish a case which should have been submitted to the jury? We have carefully examined all of the testimony offered by the plaintiff and are satisfied that the learned trial judge was correct in his conclusion. The only witness who testified to definite statements of Levi S. Wise upon the subject was I. L. Truman, who stated that, “ he (Wise) told me that he had to raise some money, as Lizzie Hopkins was coming in from the west this fall; and he said, I have got to pay her the balance that I owe her on Martin’s house and lot and interest in the farm. Those are the very words he said to me.” In answer to an inquiry whether Wise had paid Mrs. Hopkins anything on account of the amount he originally owed her, the witness answered, “ I understand there has been something paid.” And to the question whether he knew that fact he replied, “ Yes, sir; I think it was $300. I think he paid her $300. I wouldn’t say the exact amount, but I think it was $300, if my memory serves me right. It seems to me it was $300 he owed her. I may be mistaken. I might have gob those two mixed up. I may be mistaken on that. I think it was may he $300 he owed her, I haven’t seen that statement, I don’t know.” This relates to both the consideration for the plaintiff’s interest in the farm and in the house and lot. The evidence is not only vague and indefinite as to the whole amount due, but there is an entire absence of testimony as to the amount due on each of the accounts; and in view of the fact that one of the defenses to the payment of the claim for the purchase money of the lot conveyed to Martin Wise is different from that to the purchase money of the farm, it is necessary to distinguish between the two claims in fixing the liability of the decedent. To have submitted the case on such evidence would have imposed upon the jury the duty of guessing, merely, without any guide- to enable it to say from the evidence how much, if any, of the purchase money for the interest in the farm was still unpaid. The receipt in the deed is not conclusive evidence of payment, but as between the parties it is prima facie evidence of such payment and can only be set aside by clear and satisfactory testimony : Harris v. Hay, 111 Pa. 562 ; MacDonald v. Piper, 193 Pa. 312. If we were to hold that the evidence was sufficient to overcome the prima facie effect of the receipt, there is still the obstacle to the plaintiffs’ progress that there is no evidence whatever showing the amount due on account of the purchase money for the plaiu tiffs’ interest in the farm. A jury cannot be permitted to find that which is not proved.

Two objections exist to that part of the plaintiff’s claim arising out of the conveyance of the house and lot to Martin Wise : (1) It was not shown that any consideration moved from the plaintiff to Levi S. Wise for his alleged agreement to pay the purchase money primarily due from Martin Wise ; (2) the claim is barred by the statute of limitations. The evidence upon which it was proposed to make the decedent’s estate liable for the plaintiff’s interest in the house and lot is that of Mr. Truman, who gives this account of the transaction : “ At the time of Mrs. Barbara Wise’s death they wanted to settle up her affairs, and Martin Wise was to take the house and lot at $900, and this was Mrs. Backinger’s share or her interest in this house and lot, valued at $150, and she was to sign a deed to Martin Wise, and Levi S. Wise was to pay her this $150.” The Mrs. Backinger referred to by the witness is the plaintiff who afterward married Mr. Hopkins. Whether Levi S. Wise was to be surety for Martin or whether he assumed and agreed to pay Martin’s debt, or whether a consideration moved from the plaintiff to him by reason of which he agreed to pay $150, does not appear from this testimony. If the transaction was a promise to pay the debt of Martin to the plaintiff it was not in writing, and, therefore, void under the statute. The whole of this branch of the plaintiff’s claim hinges on, the statement that “ she (Mrs. Hopkins) was to sign a deed to Martin Wise, and Levi S. Wise was to pay her this ■ $150.” This comes far short of establishing a case against a defendant for an indebtedness apparently due by another person for the purchase money of real estate. Moreover, the deed for this lot was acknowledged by Mrs. Hopkins on April 18, 1899, and was recorded May 2, 1899. The action was brought October 2, 1905. The' claim was, therefore, barred by the statute of limitations, as there is no evidence tending to show that the purchase money was not due on the delivery of the deed.

The assignment of error is overruled and the judgment affirmed.


text:
    Miller, Appellant, v. Piatt.

      Equity — Evidence—Fraud—Cancellation of deed — Findings of fact— Equity pleading — Mutual mistake.

    The proof to support a bill in equity for cancellation of a deed must be clear, precise and indubitable. If the evidence of the two plaintiffs, a man and wife, is contradicted by the defendant, and the defendant’s testimony is strongly corroborated by another witness, it is the duty of the judge to pass upon the credibility of the witnesses, and his findings of fact will not be reversed by the appellate court, except for manifest error.
    Where a bill in equity is filed for the cancellation of a deed, and the relief sought is based solely on charges of fraud, a decree for the plaintiff cannot be entered because the proofs tended to show that there had been a mutual mistake. In such a case the mutual mistake must not only have been proved, but must also have been pleaded.

      May 13, 1907:
    Argued Feb. 27, 1907.
    Appeal, No. 23, Jan. T., 1907, by plaintiffs, from order of C. P. Wyoming Co., Equity Book, p. 219, dissolving preliminary injunction in case of Elmer J. Miller and Elizabeth Miller, his wife, v. James W. Piatt.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Bill in equity for an injunction.
    The facts appear by the opinion of the Superior Court.

      Errors assigned were certain findings of fact and the decree dissolving the preliminary injunction.

      Ernest E. Little, of Little Little, with him E. P. Benjamin, of Eouch ‡ Benjamin, for appellants.

      Jno. M. Grarman, with him O. 0. Dersheimer, for appellee.
   Opinion by

Henderson, J.,

Mrs. Miller, one of the plaintiffs, alleges that she was induced to give the note and accept the sheriff’s deed referred to in the bill on the representation of the defendant that his judgment, on which the sheriff’s sale was had, was a lien on five acres of land belonging to her which had formerly belonged to one Marvin Sickler, the defendant in the execution on which the land was sold; that this representation was false and fraudulent, and that she is, therefore, entitled to a decree for the cancellation of the judgment entered on her note and to a decree directing her to reconvey to the defendant the title to the Sickler land for which she had received the sheriff’s deed. The plaintiffs’ case depends wholly on a question of fact, to wit: did the defendant fraudulently represent that his judgment was a lien on the land of Mrs. Miller, and was her acceptance of the sheriff’s deed and delivery of the note to the defendant brought about by such misrepresentation ? The only witnesses called to establish the material allegations of the bill were the plaintiffs. If the case were to be disposed of on their evidence alone a different conclusion would be reached from that arrived at by the trial judge. But there was a direct contradiction between them and the defendant, and the latter is strongly corroborated by Mr. Keeler who acted as attorney for the plaintiffs at the time the note was given. In this conflict of evidence it became the duty of the judge who heard the case to pass upon the credibility of the witnesses, and to determine the facts established bj' the evidence. Under the equity rules now in force the findings of fact of a judge sitting as a chancellor will not be reversed except for clear error. The superior opportunity of the judge who hears the witnesses to properly estimate the worth of their evidence gives great weight to the conclusions of fact reached, and even where the record of the evidence shows a preponderance of testimony against such findings, that will not induce a reversal where there is evidence which, if believed, will sustain them : Hancock v. Melloy, 187 Pa. 371; Steinmeyer v. Siebert, 190 Pa. 471; Bannon v. Bank, 14 Pa. Superior Ct. 566. One of the prayers of the bill calls for the rescission of the contract executed in the delivery of the sheriff’s deed to Mrs. Miller. The evidence necessary to accomplish this result must be clear, precise and indubitable: Cummins v. Hurlbutt, 92 Pa. 165 ; Campbell v. Patterson, 95 Pa. 447. The weight of the evidence must be such as to satisfy the conscience of the court that the alleged fraud has been committed. The burden rested on the plaintiffs to present evidence of such a convincing character that a conclusion would be reached requiring a decree in their favor. They have not succeeded in doing this. It does not clearly appear from the testimony that the misrepresentations were made as alleged. The transaction out of which the litigation arose occurred in the office of their own attorney, under whose direction they were acting. They were at the county seat and a short distance from the courthouse where the records were kept, from which it could have been readily determined whether or not the defendant’s judgment was a lien on Mrs. Miller’s land, and their omission to make this inquiry, coupled with the fact that Mrs. Miller alleged at the time that the judgment was not a lien on her property, suggests that she may have desired to buy the property without reference to the question of the lien of the Piatt judgment. However this may be, we have not found anything in ■ the testimony which would have justified the court in entering a decree for cancellation and rescission under the rule as to the weight of evidence. It is contended, however, that even if there was a failure to establish a case of fraud, that the testimony warranted a finding of mutual mistake by the parties through which the plaintiff was entitled to the relief prayed for. There are two objections to this part of the plaintiff’s case : (1) It is not pleaded and (2) it does not appear from the evidence that there was, in fact, a mutual mistake. It is a rule 'of equity pleading that every averment necessary to entitle the plaintiff to the relief sought must be set forth in the bill and is not to be supplied by inference : Brinkerhoff v. Brown, 4 Johns. Ch. 671; Wright v. Dame, 39 Mass. 55 ; Boone v. Chiles, 35 U. S. 177. Material facts must be so clearly stated as to be put in issue. A party is not permitted to state one case in a bill and make out a different one by his proofs. That which is not within the allegation of the litigants is not to be acted upon by the court. The only ground of complaint expressed is the fraudulent misrepresentation made by the defendant which was the inducement to the plaintiffs’ action. It is nowhere suggested in the. bill, directly or inferentially, that the act which the plaintiffs seek to undo resulted from a mutual mistake. It may be true, as claimed by the plaintiffs, that they proceeded under the belief that the defendant’s judgment was a lien on Mrs. Miller’s 'land, but the defendant positively denied that he made any such claim. On the contrary, he testified that he had not examined the record, and did not know what the fact was, and there is no evidence tending to show that he mistakenly believed that he had acquired title to Mrs. Miller’s property by yirtue of the sheriff’s sale. The assignments of error only controvert the soundness of the conclusions of the court b.elow on the questions of fact presented. .The appeal is from the refusal of the court to continue a preliminary injunction. We are not called upon, therefore, to enter into an elaborate discussion of the evidence in the case. Under all of the authorities the findings of fact will not be disturbed where, as in this case, the testimony is conflicting and the allegations of the bill are not sustained by clear and satisfactory evidence.

The decree is affirmed.


text:
    Munson v. German Fire Insurance Company, Appellant.

      Insurance — Fire insurance — Assignment of policy — Consent of company —Proofs of loss.

    Where a vendor of real estate retains title until a balance of purchase money is paid, and the vendee takes out a policy of fire insurance, which with the consent of the insurance company, he assigns to the vendor as collateral security, and a fire occurs after all of the purchase money has been paid, but before a deed has been delivered to the vendee, the insurance company cannot object to jbroof that the assignment, although absolute on its face, was in fact collateral for the debt, nor can it allege in a suit brought by the vendor on the policy in his own name that the vendor had no insurable interest in-the property, and had no right to bring the suit in his own name.
    In such a case the vendor holds the policy as trustee for the vendee, and if the vendee does not object, the insurance company cannot object.
    Where an insurance company has refused to pay a policy of fire insurance on the sole ground that the plaintiff had no insurable interest, in the property, the insurance company cannot defend on the ground that the plaintiff had failed to furnish supplemental proof of loss on notice from the defendant.
    Argued March 5, 1907.
    Appeal, No. 8, March T., 1907, by defendant, from judgment of O. P. Lycoming Co., Dec. T., 1905, No. 157, on verdict for plaintiff in case of C. LaRue Munson v. German Fire Insurance. Company of Peoria, Illinois.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    .Assumpsit on a policy of fire insurance. Before. Hart, P. J.
    The facts are stated in the opinion of the Superior Court.
    At the trial the court admitted under objection and exception the policy and the assignment [1] and also under objection and exception permitted the plaintiff and George Breon, to testify to the effect that the assignment was collateral for a debt [2, 8].
    Defendant presented the following, points:
    5. There is nothing in this case to show that the plaintiff, C. LaRue Munson, was at any time, from the date of the policy to the time of the fire, “ sole and unconditional ” owner of the premises alleged to have been destroyed, and in the absence of such proof there can be no recovery in this case. Answer : This point is refused. [5]
    6. There is no evidence in the case showing that the plaintiff in this action had such an insurable interest in the premises as will entitle him to a verdict. Answer: This point is refused. [6]
    7. The proofs of loss furnished to the defendant company by the plaintiff, after the said fire, having been objected to by the said company, and requests, having been made by it for specific information and proof concerning and relating to the said property destroyed, it then and there became the duty of the said plaintiff to furnish such information, and his failure to do so is a bar to his recovery in this suit. Answer: This point is affirmed, unless the jury should find from the evidence that the defendant company, through its agent, H. M. Kuester, placed its defense or objections to the payment of this policy solely upon the ground that C. LaRue Munson had not an in-insurable interest in the property. [7]
    8. It was the duty of the plaintiff in this action to comply with the request of the company after proofs of loss had been furnished to it by the said plaintiff, that he state the interest of himself and George B. Breon in said property at the time of said fire. Answer : This point is affirmed, provided jmu do not find in this case that this provision relating to the proof of loss was waived by the defendant company by placing its defense upon the ground as disclosed in Mr. Kuester’s conversation with Mr. Munson and others solely that Mr. Munson had not an insurable interest in the property. [8]
    Verdict and judgment for plaintiff for $774. Defendant appealed.

      Errors assigned were (1-3) rulings on evidence, quoting the bill of exceptions ; (5-8) above instructions, quoting them.

      W E. Ritter, for appellant.
    — Mr.-Munson had no interest in the property. As the holder of the legal title only he would not be entitled to recover, because the cases uniformly hold that the only one entitled to a recovery is the equitable and not the legal holder of the title: Rathmell v. Aurora’ Fire Ins. Co., 38 W. N. C. 356; Millville Mut. Fire Ins. Co. v. Wilgus, 88 Pa. 107 ; Elliott v. Ins. Co., 117 Pa. 548 ; Yost v. Ins. Co., 179 Pa. 381; Elliott v. Teutonia Ins. Co., 20 Pa. Superior Ct. 359 ; Ambrose v. Ins. Co., 19 Superior Ct. 117 ; Ulysses Elgin Butter Co. v. Ins. Co., 20 Pa. Superior Ct. 384.
    May 13, 1907 :
    If the policy was given originally as collateral security for a debt due Munson by Breon, it' certainly could no longer be operative in that particular after the debt was discharged: Ins. Co. v. Roberts, 31 Pa. 438.

      Addison Candor, of Candor Munson, with him Seth T. McCormick and Haines <£ Peaslee, for appellee.—
    The assignment left Breon still interested in the contract and in the loss; it did not void the policy because Munson had no insurable interest in the property. The following cases fully sustain this contention: Merrill v. Colonial Mut. Fire Ins. Co., 169 Mass. 10 (47 N. E. Repr. 439) ; Ins. Co. of Penna. v. Phœnix Ins. Co., 71 Pa. 31; Fogg v. Middlesex Mut. Fire Ins. Co., 64 Mass. 337; Phillips v. Merrimack Mut. Fire Ins. Co., 64 Mass. 350.
   Opinion by

Henderson, J.,

The policy of insurance on which the pending action was brought was issued to George B. Breon, who was the equitable owner of the property insured. Being indebted to the plaintiff as trustee for unpaid purchase money, the policy was assigned to him about three weeks after it was issued. The assignment was indorsed on the back of the policy and the company, through its agent, assented théreto. The plaintiff’s evidence was to the effect that the defendant was informed of the situation of the parties and that the insured desired to protect the plaintiff as a creditor; that the assignment was to be made as collateral security for the plaintiff’s debt and that the defendant’s agent advised them to make it for that purpose. After the assignment was executed, the policy was delivered to the plaintiff. Payments were made by the insured on the plaintiff’s debt from time to time, and at the date of the fire the purchase money was paid in .full. The title, however, had not been delivered by the plaintiff to Breon. Defense is now made against the payment of the loss to the plaintiff because he had no insurable interest in the property ; and the right of Breon to recover is denied because he had no insurance. That Breon had an insurable interest at the time the policy was issued is not questioned. The contract expressly permits an assignment with the assent of the insuring company. The title acquired by the plaintiff was in strict accord with the terms of the policy, and is not prohibited by any statute. The policy is not a negotiable instrument, but is assignable in equity. The contract between the original parties survives for the use of the assignee, and by the assignment the insured appoints him to receive the amount payable on the contingency of fire. There is nothing in the nature of the contract which forbids an assignment as collateral security with the consent of the company. The question of interest or estate relates to the issuing of the policy and not to its assignment: Lycoming Ins. Co. v. Mitchell and Boyle, 48 Pa. 367; Merrill v. Colonial Mut. Fire Ins. Co., 169 Mass. 10. In such case the assignment is not of the policy as an insurance, but an equitable transfer of the insured’s right to receive the amount payable in case of loss: Ins. Co. of Penna. v. Phoenix Ins. Co., 71 Pa. 31. It has none of the features of a new contract of insurance. All of the conditions of the policy continue, and notwithstanding the payment of his indebtedness by Breon the contract remained in force for his indemnity. The appellant contends that the assignment of the policy is absolute on its face and that the evidence offered is not of the clear, precise and indubitable character necessary to reform a written instrument. There is neither statute nor policy of law which forbids the parties to an assignment from showing that it was intended as a security for the payment of purchase money. Prior to the act of June 8, 1881, P. L. 84, such evidence was admissible even in the case of a conveyance of land. If the plaintiff took the assignment as collateral security and ¡admits the fact and the other party to the assignment concurs therein there is neither law nor reason to prevent them from carrying out such an agreement, although the assignment does not fully express the purpose for which it was made. The insurance company by consenting to the assignment recognized the fitness of the plaintiff to receive it, and it does not lie in Its mouth now to deny to the latter the right to carry out the actual terms of the assignment in good faith. Fraud is not alleged and it is not disputed that a loss occurred as claimed by the plaintiff. The parties to the assignment agree that it was executed merely as collateral security and not for the purpose of transferring the ownership of the policy to the plaintiff, and there is no evidence which contradicts their testimony. It is sufficient to establish the fact, even if it be conceded that the defendant has standing to raise the question. The court was not in error, therefore, in admitting the policy, the assignment and the parol evidence of the conditions and purposes of the assignment.

It is contended, however, that the action cannot -be maintained in the name,of the plaintiff. This objection is so technical that it ought to be supported by very persuasive reasons. The plaintiff has the legal title to the policy by permission of Breon.'and with the consent of the company. It was assigned to him to secure his indebtedness. By that assignment he was invested with the right to maintain an action thereon in his own name under the Act of March 14, 1873, P. L. 46. If the debt for which the assignment was made has been paid, the plaintiff holds the policy as trustee for the assignor in whose favor the insurance was taken and whoso right to indemnity is not destroyed when the plaintiff’s debt is paid. If there had been an absolute assignment of the policy, as in the case of the sale of land and the transfer of the policy of insurance on the buildings thereon to the purchaser, it may be conceded that the rights of the vendor under the policy would cease, but the evidence here shows, as we have seen, that tbe only object moving the parties to execute and receive the assignment was the securing of the plaintiff’s claim. Breon is co-operating with the plaintiff in collecting the claim as the evidence shows, and his interests under the policy are represented by the plaintiff in the action. It is a matter of no concern, therefore, to the defendant, how the plaintiff and Breon dispose of the proceeds of a judgment obtained in the action. We are of the opinion that the light of action in his own name which the plaintiff obtained by virtue of the assignment continues with the consent of Breon, and that on the facts shown a recovery may be had in the name of the plaintiff. This being so, the proofs of loss were properly furnished by the plaintiff. The Act of June 27, 1883, P. L. 165, provides that either the assured or an assignee of the policy as collateral security may furnish the company with the notice of loss and preliminary proofs: Stainer v. Royal Ins. Co., 13 Pa. Superior Ct. 25.

The remaining defense relied upon was the omission of the plaintiff to furnish supplemental proofs of loss on notice from the defendant. The position of the plaintiff on this point was that the company had waived proofs of loss by refusing payment and basing its refusal solely on the ground that the plaintiff had no insurable interest in the property. The fire occurred April 11, 1905. The plaintiff made out proofs of loss May 12, 1905. Soon after the fire Mr. Peaslee, a member of the bar who represented the plaintiff and Mr. Breon, made several demands on Mr. Kuester, the agent of the company, for payment of the claim, and he testifies that as he recollects the conversations the agent declined to pay solely upon the ground that Mr. Munson had no insurable interest in the property. According to the testimony of the witness some of these conversations, at least, took place before the letter of June 5, 1905, from the company, demanding additional proofs, was received. The evidence of Mr. Peaslee was not contradicted, and the court submitted the question to the jury whether there had been a waiver of additional proofs by the company. Under the authorities this question was properly referred to the jury. A denial of liability on other grounds than the want of additional proofs where the loss was total and notice of the fire was immediately sent to the company is a waiver of technical proofs. A waiver of proofs of loss required in a policy may be inferred from any act of the insurer evincing a denial of obligation exclusively for other reasons: Roe v. Dwelling House Ins. Co., 149 Pa. 94 and cases there cited. The policy was assigned in good faith under the direction of the agent, the loss is not denied and we find no substantial merit in the defense set up.

- The assignments are, therefore, overruled and the judgment affirmed.


author: Pee Ctteiam,

text:
    East Stroudsburg State Normal School, Appellant, v. Yetter.

      Corporations — School laws — State aid — Officers—Sale of supplies— Act of April 23, 1903, P. L. 285 — Constitutional law.

    A private corporation operating a state normal school and receiving moneys from legislative appropriations, is within the purview of the Act of April 23,1903, P. L. 285, entitled; “An Act to prevent officers or members of boards of managers of institutions receiving appropriations of state money from selling supplies to such institutions, or acting as agent for the sale of the same.”
    The Act of April 23,1903, P. L. 285, is constitutional.
    Argued Feb. 25, 1907.
    Appeal, No. 49, Jan. T., 1907, by plaintiff, from judgment of C. P. Monroe Co., Sept. T., 1906, No. 6, on case stated in suit of East Stroudsburg State Normal School v. Milton Yetter.
    Before Rice, P. J., Porter, Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.
    Case stated in an action of assumpsit for breach of contract.
    Trexler, P. J., specially presiding, filed the following opinion:
    The matter comes before the court upon a case stated. On March 5, 1906, Milton Yetter, a member of the board of trustees of the East Stroudsburg state normal school, a private corporation chartered by the state, agreed to furnish certain merchandise to said normal school at a fixed price. He failed to deliver it and the plaintiff went into the open market and bought the same, and the difference between the contract price and the market price was SI 00, to recover which this suit is brought.
    By the Act of April 23, 1903, P. L. 285, entitled “ An act to prevent officers or members of boards of managers of institutions receiving appropriations of state money from selling supplies to such institutions, or acting as agent for the sale of the same,” it is provided :
    “ Section 1. Be it enacted, etc., that it shall not hereafter be lawful for any officer or member of the board of managers of an institution, at a time; when said institution is receiving state moneys from legislative appropriations, to furnish supplies to such institution, either by direct sale or sale through an agent or firm, or to act as an agent for another in so furnishing supplies.
    “ Any person who may violate any of the provisions of this act shall be guilty of a misdemeanor, and upon conviction therefor shall be punished by a fine not exceeding five hundred (500) dollars, or by imprisonment not exceeding one year, or both fine and imprisonment, at the'discretion of the court.”
    The question before the court is, is the act above quoted a valid and constitutional enactment ? If it is, then judgment should be entered for the defendant, and if not, for the plaintiff.
    DISCUSSION.
    The first objection to the act is, that it is in contravention of article I, sec. IT, of the constitution of Pennsylvania, and of .article I, section 10, clause 1, of the constitution of the United States, forbidding the passage of any law impairing the obligation of contracts.
    The East Stroudsburg state normal school is a private corporation, chartered by the state of Pennsylvania. See Commonwealth v. Yetter, 190 Pa. 488.
    It is contended that this law impairs the obligation of the contract between the commonwealth and the school in granting the charter and accepting it as a state normal school. I think that this proposition requires no extended discussion. It can hardly be claimed that the chartered rights of the state normal school are impaired or abridged by any such prohibition as is imposed by the act now before us.
    The charter of the corporation is not a license to do business in such ways and .by such methods as it sees fit, when such ways may be contrary to public policy. The legislature has in many cases, where the public health or safety is concerned,, regulated corporations. Irrespective of this, the normal school can still pursue the objects of its charter and the fact that it cannot purchase supplies from any of its officers cannot be held to deprive it of any of its functions.
    The second reason urged .is, that it is in contravention of article III, sec. 7, of the constitution of the state.of Pennsylvania, prohibiting the passage of any local or special law regulating the affairs of counties, cities, townships, wards, boroughs or school districts and of the fourteenth amendment, sec. 1, of the constitution of the United States, providing that no-state shall make any law abridging the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty or property without due -process of law.
    The act in question can hardly be considered as an act regulating affairs of counties, townships, cities, wards, boroughs or school districts, as the act applies only to institutions receiving state aid.
    It is true that in Morrison v. Bachert, 112 Pa. 322, it was said that the words “ Affairs of the county ” me'an such affairs as affect the affairs of the people of a county, but by no consideration of this case can we say that the prohibiting of certain contracts between institutions and their officers is legislation concerning the affairs of the subjects referred to in said article of the constitution, nor can it be held that this act deprives any person of liberty or property or the protection of the laws. The liberty to contract and the right to dispose of property has never been held to be so inviolate as to prevent the state from regulating, and even prohibiting, certain contracts, and this is so even if the matters are not mala in se.
    The third objection is, that the act offends against article III, sec. 7, of the constitution of Pennsylvania, which provides, that the general assembly shall not pass any local or special law regulating labor, trade, mining or manufacturing. Is this a special act regulating trade ?
    In considering this branch of the case, which I consider the most important, we must also take in account the provision of article XVI, sec. 3, of the constitution which provides, that the exercise of the police power of the state shall never be abridged. The state has an undoubted right in the exercise of its police powers to declare any acts done within its territory unlawful or criminal if not beyond the limits imposed by the constitution; and considerations of wisdom or policy, hardship or difficulty of enforcement must be addressed to the law-making branch of the government: Com. v. Biddle, 139 Pa. 605.
    And the state in the exercise of its police power may proMbit the common-law right of contract in the individual, as to things not malum in se : Swing v. Munson, 191 Pa. 582, citing Com. v. Vrooman, 164 Pa. 306.
    The police power'of the state is the right to prescribe regulations for the good order, peace, health, protection, comfort, convenience and morals of the community which do not encroach on a like power vested in congress by the federal constitution or do not violate the provisions of the organic law: Wilkes-Barre v. Garabed, 11 Pa. Superior Ct. 355, citing Powell v. Penna., 127 U. S. 678; Powell v. Com., 114 Pa. 205.
    The question remains, therefore, has the state the right to make the receipt of state moneys a basis of classification and prohibit officers of institutions receiving such money from contracting with'such institutions? We need not discuss the right of the legislature to classify the objects of legislation, provided such classification is reasonable, but classification must be based upon substantial grounds. The legislature cannot deny to one class of citizens the free right to contract which is enjojmd by and unalterably secured to all other citizens, unless there be such difference as in the nature of things furnishes a reasonable basis for such regulations. See Com. v. Mintz, 19 Pa. Superior Ct. 283; Com. v. Brown, 8 Pa. Superior Ct. 339, quoting State v. Loomis, 115 Mo. 307; Cooley’s Const. Lim. (6th ed.), 484.
    The state of Pennsylvania at each session of the legislature appropriates various sums of money to numerous institutions. The evident purpose of the act was to preserve the appropriations for the uses for which they were intended. To allow such institutions to contract with their officers, or, in other words, to allow the officers to contract with themselves, was thought by the legislature to open the way to fraud and, therefore, the act was passed. Was the state compelled to pass an act which applied to all institutions whether the subjects of the state’s bounty or not ? The state has a special interest in the subjects of its charity. It would seem strange that the sovereign power, considered abstractly, could not safeguard its own interest without including the interest of all of its subjects.
    The legislature in its wisdom has determined that it is against good policy for the trustee of an institution, receiving state aid, to sell supplies to such institution. Any right-minded person will agree that thé effect of such an act is salutary and is in line with the trend of public opinion.
    The limitation of the act to institutions receiving state aid is, to my mind, a reasonable classification, because such institutions sustain relations to the state which others do not. I consider the act constitutional. The contract entered into between Milton Yetter and the East Stroudsburg state normal school was unlawful and there can be no recovery for the breach thereof.
    Now, December 10, 1906, judgment is entered in favor of the defendant.

      Error assigned was the judgment of the court.

      S. E. Shull, of Shull Shull, for appellant.
    — The act of 1903 has no application to the plaintiff: Trainer v. Wolfe, 140 Pa. 279 ; Milford Borough v. Milford Water Co., 124 Pa. 610; McLeod v. Central Normal School Assn., 152 Pa. 575.
    The act is unconstitutional: Dartmouth College v. Woodward, 17 U. S. 518; Boston Beer Co. v. Massachusetts, 97 U. S. 25; Hays v. Com., 82 Pa. 518 ; Bank of Pennsylvania v. Com., 19 Pa. 144; Com. v. Pittsburg, etc., R. R. Co., 58 Pa. 26 ; Frost v. Cherry, 122 Pa. 417 ; Com. v. Clark, 14 Pa. Superior Ct. 435; Ayars’ App., 122 Pa. 266 ; Sayre Boro. v. Phillips, 148 Pa. 482; Shamokin Boro. v. Flannigan, 156 Pa. 43.

      F. B. Holmes, for appellee.
    — We believe there can be no doubt that state normal schools, as they exist in Pennsylvania, are “ institutions ” within the purview of the act of 1903 : Dodge v. Williams, 46 Wis. 70 (1 N. W. Repr. 92).
    The act is constitutional: Slaughter House Case, 111 U. S. 746 (4 Sup. Ct. Repr. 652); New York & New England R. R. Co. v. Bristol, 151 U. S. 556 (14 Sup. Ct. Repr. 437) ; Eagle Ins. Co. v. Ohio, 153 U. S. 446 (14 Sup. Ct. Repr. 868); Myers v. Irwin, 2 S. & R. 368; Ex parte Kemmler, 136 U. S. 436 (10 Sup. Ct. Repr. 930); McElvaine v. Brush, 142 U. S. 155 (12 Sup. Ct. Repr. 156) ; Miller v. Texas, 153 U. S. 535 (14 Sup. Ct. Repr. 874) ; Com. v. Wilson, 9 W. N. C. 291; Barbier v. Connelly, 113 U. S. 27 (27 Sup. Ct. Repr. 357) ; Com. v. Brown, 8 Pa. Superior Ct. 339; Sample v. Pittsburg, 212 Pa. 533.
    April 15, 1907:
   Pee Ctteiam,

It is contended that the provisions of the Act of April 23, 1903, P. L. 285 were intended to apply only to public or quasi public corporations, and that the appellant is not such a corporation. But we see no occasion or justification for going outside the unambiguous words of the act in search of a construction that would exclude from its operation a class of institutions that are as plainly within the reason of the enactment, and the mischief to be remedied, as any others that can be mentioned. The contract in question was made in March, 1906, for which fiscal year, as well as the year following, an appropriation of state money had been made, to be distributed equally among the thirteen normal schools, the appellant being one of them. See Act of May 11, 1905, P. L. 557. It was conceded in the argument, and is a matter of common knowledge, that it is customary for the state legislature to appropriate funds from the state treasury in aid of such schools, and it appears from the appropriation act of 1905, as well as by the admission of the case stated, fairly interpreted, that the appellant was enjoying the benefit of an appropriation for the particular year. There is no room for doubt that at the time the contract was made the appellant was an institution receiving state money from legislative appropriations, within the true intent and meaning of the act of 1903. The remaining questions raised in the argument relate to the constitutionality of the act. These are adequately discussed in tfie clear and satisfactory opinion of the learned judge specially presiding below, in which we concur.

Judgment affirmed.


author: Orlady J.,

text:
    Fuller v. Cole, Appellant.

      Evidence — Will—Title to land — “Wild lands” — Pedigree.
    Where in an action involving title to real estate, a will describing lands devised as “wild lands” is offered subject to further proof as to the identification of the land in controversy with the land devised by the will, and this proof is supplied, no error can be assigned to the admission of the will in evidence. /

    In such a case great-nieces of the testator who had personal 'knowledge of the lands through association, correspondence with members of the family, and undisputed family records, are competent witnesses as to pedigree.

      Deed — Boundary—Lake—Prescription—Cutting ice — Riparian owner.

    Where a deed calls for a corner in the edge of a small lake, and thence along the edge of the lake, the grantee has no ground to claim title to the middle of the lake.
    In ap action to recover damages for cutting ice on a small lake, where the plaintiff shows record title in the bed of the lake, and possession as much as could be maintained under the circumstances, the defendant cannot set up a right by prescription to cut the ice, where it appears that although ice was cut at irregular intervals, plaintiff objected as soon as a right to cut was asserted, and that the defendant had in the year prior to the suit requested permission from the plaintiff to cut ice, and had paid for the privilege.
    Argued March 1, 1907.
    Appeal, No. 40, Jan. T., 1907, by defendant, from judgment of C. P. Lackawanna Co., March T., 1905, No. 351, on verdict for plaintiff in case of Helen M. Fuller v. Uriah Cole.
    Before Rice, P. J., Porter, Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for cutting ice on ar lake. Before Edwards, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for six cents. Defendant appealed.

      Errors assigned were (2, 3) rulings on evidence as stated in the opinion of the Superior Court; (1, 4-6), instructions as follows:

      May 13, 1907;
    [1. The plaintiff has established her title to about nine-tenths of Lily Lake, and the trespass committed by the defendant was committed on the part of the lake belonging to the plaintiff.] [1] Whether there is a small undivided part outstanding is immaterial; it does not defeat the plaintiff’s right to bring her action.
    [2. Under the undisputed testimony on both sides the plaintiff had sufficient possession, considering the character of the property, to maintain an action of trespass.] [4]
    3. The defendant’s land is described by metes and bounds, two of the courses reading as follows : “ Thence south forty-four degrees west seventy-nine perches and five-tent! s of a perch to a corner in the edge of Wall pond; (Wall pond being Lily Lake) thence along the edge of said pond south fifty-seven degrees east thirty-one perches to a corner in the edge of said pond.” [This line extending thirty-one perches along the edge of the pond does not give the defendant the right to the center of the lake or to any part of the lake beyond his survey line.] [5]
    [4. All the evidence in the case as to the use made of the lake by the defendant and by the other shore-owners, seven or eight in number, defeat any right on the part of any of them to claim a prescriptive privilege to cut ice upon the lake or to fish or to boat upon the waters of the lake within the lines of the plaintiff’s property.] [6]

      A. Rieketls, with him Fred. 0. Hanyen, for appellant.

      E. F. Willard, of Willard,, Warren g Knapp, with him Welles ‡ Torrey, for appellee.
   Opinion by

Orlady J.,

An action of trespass was brought before a magistrate for cutting ice on a body of water known as Lily Lake, situated in Lackawanna county. The defendant filed his affidavit alleging that the title to the land would come in question, and the case was removed to the court of common pleas. At the conclusion of the trial counsel for both parties asked for binding instructions, and after hearing argument the court instructed the jury to return a verdict in favor of the plaintiff and to assess damages at a nominal sum. A verdict for six cents was rendered.

While the second assignment of error might properly be disregarded as being in direct violation of rule XVI of this court, under the special circumstances of the case we treat it as a valid one. Thomas W. Clymer was the undisputed owner of an undivided nine-tenths of the land claimed by the plaintiffs, and by his will he devised to his brother, William Bingham Clymer, all his “wildlands.” When this will was offered in evidence it was received “ subject to further proof as to identification of the land in question with the land devised by the will.” This proof was supplied through the definite location of, and title to, the original warrants, with undisputed evidence that this lake was within their lines’, coupled with a chain of title which at the time of trial vested in plaintiff. This was so clearly established that the appellant relied on another and entirely different proposition,' as is shown by the opening inquiry of this argument: “ The controlling question in this case is, has the plaintiff shown possession of the land in question in the case ? ”

The third assignment of error is as clearly in violation of the same rule of this court. To prove that William Bingham Clymer died intestate, and that the plaintiff’s grantors were his sole legal heirs, the depositions of Mrs. Mercur and Mrs. Little were taken. Counsel for the defendant was present at the taking of depositions and the witnesses were fully cross-examined as to their relationship and means of knowledge of the facts to which they testified. William Bingham Clymer was their great-uncle, and they had personal knowledge through years of association as children, which was continued through correspondence with all the members of his family and undisputed family records. William Bingham Clymer was married in 1852 and died in 1873. In 1878, Mrs. Clymer with two of her children were drowned through the sinking of the Steamship Pomerania in the British Channel, and two of the children, Mary and Rose, alone survived that disaster. They have continuously remained abroad, and have avowed their intention of never returning to the United States. They are now married, one residing in France and the other in Italy, with their respective families, and are the sole surviving heirs of William Bingham Clymer. The relationship between the witnesses and the plaintiff’s grantors was sufficiently established, in the judgment of the court, to receive their depositions in evidence and permit thóir declarations to go to the jury: Sitler v. Gehr, 105 Pa. 577; Gehr v. Fisher, 148 Pa. 311. The proof thus adduced met fully all the requirements of the law in regard to their lineage and descent. An examination of the depositions, as printed in full in the appendix in appellant’s paper-book, fully sustains the action of the court in this respect. The second and third assignments of error are overruled.

The action was brought for the purpose of testing the plaintiff’s title to this inland body of water called Lily Lake or Wall Pond, containing eightjr-four acres, more or less. The plaintiff by voluminous and somewhat complicated assurances clearly established her paper title to the satisfaction of the court to an undivided nine-tenths of the land, in part covered by the water of Lily Lake or Wall Pond. In addition to this it was clearly shown that it ivas wild, unimproved and unseated land, that taxes had been paid upon it by the present plaintiff and her predecessors in title, that notices of protest against trespassers had been maintained, and that the location was definitely ascertained by a surveyor, who determined the original location of the Moses Starr and Samuel Giffen. warrants of which these eighty-four acres of land are a part: Wilkinson v. Connell, 158 Pa. 126 ; Irwin v. Patchen, 164 Pa. 51. Another element of controversy in the case, and about which the appellant makes an earnest contention, is the effect to be given to the deédby which the defendant holds title to his land adjoining the lake. The description in his deed, so far as it relates to that part of the land of which he claims to be a shore owner, is as follows : “ Thence south 44 degrees west 79 perches and t50 of a perch to a corner in the edge of Wall Pond; thence along the edge of said pond 57 degrees east 31 perches to a corner in the edge of said pond ; thence south 18 perches to a hemlock tree, .... containing 50 acres, strict measure, be the same more or less, being part of a larger tract under the warrantee name of Moses Starr.” By the testimony of George Stevenson, a surveyor, it was proven that in a conversation he had with the defendant, the location of the above quoted lines was not disputed, viz.: “I said to him, ‘You know that I ran your lines here where the division of the Franklin estate was made between you and Mr. White, and you were entirely satisfied with the work, were you not? ’ Yes, he was; ‘ And you knew where your lines ran on that occasion, and they didn’t give you any'title to the lake ? ’ No, he said; he never claimed any title to the lake.” It was shown as a further fact that the year preceding this trespass, the defendant directed a request to the superintendent of the plaintiff as follows: “ Dear Sir: I desire to cut ice on Lily Lake, now owned by Mr. E. L. Fuller, and am willing to pay for the same at a rate not exceeding ten cents per ton,” which request was granted, and the ice taken from the lake during that season, and paid for by him.

There is no merit in his contention as urged by his counsel on the trial below, and in this court, that his conveyance carried his title to the center of the pond. In the description of his grant there is nothing doubtfully set down, and it comprehends to a certainty the thing granted by express and unmistakable words. There is not any conflict between natural objects and monuments on the ground on the one hand, and courses, distances and quantity on the other. The description in the deed is clearly, certainly and definitely applied to the ground, and there is no controversy as to the exact location of any course mentioned in his deed. For all purposes of title, and of rights flowing therefrom, it was perfectly immaterial to the defendant what was south and west of his land as defined by the lines “from a corner in the edge of Wall Pond; thence along the edge of said pond south 57 degrees east 31 perches to a corner in the edge of said pond; thence south 18 perches to a hemlock tree.” Had this boundary line been a stone wall six feet in width at the bottom, the grant would have extended to the center of it, as was said in Warner v. Southworth, 6 Conn. Reports, 471, but it could go no further than the center of the boundary line. The line as described, not the pond, was his boundary, and beyond it he had no right to go, whether to take ice, mine coal, or cut timber, or whether it was arable land, or a lake. In crossing this line he became a trespasser. Even in cases where a river is mentioned as a boundary, where the language used clearly shows such to be the intention of the grantor, the bank, side, margin or shore become themselves monuments, and are to be treated as such, and such grant does not extend to the center of the stream unless there are in the deed other words indicating that such were the grantor’s intention : Angelí on Water Courses, sec. 26, and cases cited. In City of Boston v. Richardson, 95 Mass. 146, the rule is stated to be as follows: “ Whenever land is described as bounded by other land, or by a building, or structure, the name of which according to its legal and ordinary meaning includes the title in the land of which it has been a part, as a house, a mill, a wharf, or the like, the side of the land or structure referred to as a boundary is the limit of the grant, but when the boundary line is simply by an object, whether natural or artificial, the name of which is used in ordinary speech as defining a boundary, and not as describing a title in fee, and which does not in its description or nature include the earth as far down as the grantor owns, and yet it has width as in the case of a lake, a river, a ditch, a wall, a fence, a tree, or a stake and stones, then the center of the thing so running over or standing on the land is the boundary of the lot granted. And in Child v. Starr, 4 Hill’s Reports (N. Y.), 369, the rule is held to be, if the grantor after giving the line to the river bounds his land by the hank of the river, or describes the line as running along the bank of the river, or bounds it upon the margin of the river, he shows that he does not consider the whole alveus of the stream a mere mathematical line so as to carry his grant to the middle of the river. In Canal Appraisers v. The People, 17 Wendell, 570, Chancellor Walworth says: “ There cannot be a possible doubt that if I am the owner of lands on either or both sides of a stream, whether the same be navigable or otherwise, and am also the owner of the bed of the stream itself, I may convey the land on either side or both in such a manner as to retain or reserve to myself the bed of the river or stream, and the islands therein, if any such there be. In Holden v. Chandler; 61 Vt. 291 (18 Atlantic Repr. 330), it was shown that two deeds in the plaintiff’s chain of title indicated that the boundary of his land was the bank of the pond, namely, one bounding the lot “by the edge of the mill pond,” and another by “ the bank of said mill pond.” The court held that the line was fixed and permanent, and his boundaries were not enlarged by the receding of the stream ; that the territory was limited by a defined boundary, without regard to the continuous subsidence of the waters constituting the pond, thereby leaving the latter dry. Not only the terms of the description, but the nature and reason of the case evinced the intent to fix a defined boundary of land, and give ownership to that boundary, and on both sides of it.

The defendant in this case is not a riparian owner in the sense of owning land bounding upon a water course, which without further words of definition pass title to the thread or central line of the stream. This small body of water is without curreht or thread, and both the plaintiff’s title and the defendant’s are fixed by clearly defined lines in regard to the location of which there is no dispute. The authorities in Pennsylvania are in accord with the ones above cited. Smoulter v. Boyd, 209 Pa. 146 would of itself be conclusive against the defendant’s contention. He is entitled to all the land inclosed by the metes and bounds of his deed: to this acreage and no more. His contention that the defendant had a right by prescription to take ice from this body of water is not supported by any evidence. It is true that ice had been taken from the pond at irregular intervals, without the direct permission of the owner, by the class of persons called bjr the appellant, shore owners, but the right to do so was never recognized by the holder of this title, and as soon as it was asserted as a right, it was resisted by the posting of notices and requiring persons to make a formal application, and pay for the ice taken. Possession of the land covered by the water was taken and asserted by the plaintiff and her predecessors in title, so far as possession could be taken of an unin closed, nonnavigable pond or small lake, and the defendant not having any right to cut ice as a riparian owner, and recognizing that he had no right by prescription, by his making a formal application for permission to take ice the year previous, and paying for the ice so taken, his assertion of title by prescription fell with the balance of his defense.

The assignments of error are not sustained, and the judgment is affirmed at the costs of the appellant.


author: Orlady, J.,

text:
    Smith, Appellant, v. Beales.

      Wills — Probate—Will made in extremity of last illness — Act of April 8, 1833, P. L. -249.
    Where a person in the extremity of his last illness requests another to write his will, and this is done in the presence of two witnesses, and the writing is read over to the decedent, and approved by him, but before he is able to sign it, he becomes unconscious and dies, the writing may be probated as a will on the testimony of the two witnesses who were present when it was written.
    The fact that a will was written by pencil instead of pen, does not affect its validity.
    A will admitted to probate in 1883, and passing real estate, cannot be challenged in an action of ejectment instituted in 1905.
    Argued March 11, 1907.
    Appeal, No. 7, March T., 1907, by plaintiff, from judgment of C. P. Adams Co., Aug. T., 1905, .No. 174, on verdict for defendants in case of John Smith etal. v. Cyrus G. Beales et al.
    Before Rice, P. J., Portee, Henderson, Moeeison, Orlady and Head, JJ.-
    Affirmed.
    Ejectment for land in the Borough of York Springs.
    The opinion of the Superior Court states the case.
    The court gave binding instructions for defendant.
    Verdict and judgment for defendants. Plaintiffs appealed.

      Error assigned was in giving binding instructions for defendants.

      J. L. Butt and J. L. Williams, for appellants,
    cited: Wiley’s Estate, 187 Pa. 82; Wall v. Wall, 123 Pa. 545; Cowden v. Pleasants, 9 Pa. 59.

      W. C. Sheely, for appellee.
    — The proof was sufficient: Aurand.v. Wilt, 9 Pa. 54; Wall v. Wall, 123 Pa. 545.
    A will probated and not appealed from within five years is conclusive upon all parties, whether infants, femes covert, or persons non compos mentis: Cochran v. Young, 104 Pa. 333; Broe v. Boyle, 108 Pa. 76; McCay v. Clayton, 119 Pa. 133; Wall v. Wall, 123 Pa. 545.

      May 13, 1907:
    A will written in lead pencil is as valid as one written in ink: Myers v. Vanderbelt, 84 Pa. 510; Fuguet’s Will, 11 Phila. 75.
   Opinion by

Orlady, J.,

Thomas D. Reed died on May 10, 1883. It is undisputed that the facts contained in the writing and affidavit through which the will of the decedent was admitted to probate are strictly true. They are as follows : “ County of Adams, ss.: Before me the subscriber, register of-wills in and for the county aforesaid, personally came Cyrus G. Beales, Boreas F. Reed and Jacob T. Myers, all of the borough of York Springs, Adams county, Penna., who being severally sworn do depose and say that they have been long and intimately acquainted with Thomas D. Reed, the above named testator of York Springs, Adams county. That on the morning of May 10, 1883, about eight o’clock, Thomas D. Reed being in the extremity of his last illness, requested Cyrus G. Beales to write his will in the presence of said Boreas F. Reed and Jacob T. Myers, as the witnesses thereto, whom he requested for that purpose ; that said Cyrus G. Beales got paper and pencil and wrote down the foregoing as the will of said Thomas D. Reed, as he dictated it just as it is therein written ; that after it was thus written it was read by Cyrus G. Beales to said Thomas D. Reed, and he was asked whether that was what he wanted, and he said yes; and while it was being prepared for signing by said Thomas D. Reed lie became unconscious and in a dying condition, wholly insensible, and died in less than half an hour. That he was prevented by the extremity of his last illness and dying condition from signing the same or giving directions that the same should be signed for him; that at the time of dictating his will as aforesaid, and afterwards when the same was read to him and he answered that that was right, it was what he wanted, the said Thomas D. Reed was of sound and disposing mind, memory and understanding, and knew all abotit the disposition of his property which he had made, That when the will was ready he was not only incapable of signing the will but also of directing it to be done by another for him; that this will was made in his own dwelling house where he had resided for many years immediately preceding his death. That his death occurred yesterday morning, May 10, 1883, about nine o’clock. That the dictation of the foregoing will and the reducing of it to writing, and the reading of it to Thomas D. Reed and his answer that it was all right, it was what he wanted, was all in the presence of the undersigned, Boreas F. Reed and Jacob T. Myers, as witnesses, and that said testator was then fully conscious of what he was doing, but suddenly became insensible and in a dying condition, and wholly incapable of signing it or directing it to be signed.

“ Cyrus G. Beales,

“ Boreas F. Reed,
“ Jacob T. Myers.
“ Sworn and subscribed to the truth of the foregoing probate and affidavit before me this 11th day of May, A. D. 1883.
“ Jebe Salybaugh, Register.”

Upon these the will was admitted to probate, and letters were granted to Boreas W. Zeigler and Cyrus G. Beales.

The sixth section of the Act of April 8, 1833, P. L. 249, specifically provides for just such a contingency as is set forth in this affidavit. It is as follows : “ Every will shall be in writing, and, unless the person making the same shall be prevented by the extremity of his last sickness, shall be signed by him at the end thereof, or by some person in his presence, and by his express direction ; and in all cases shall be proved by the oaths or affirmations of two or more competent witnesses, otherwise such will shall be of no effect.” A writing that does not meet these requirements is not a will, and the register cannot make a will out of it, but if it conforms to the requirements of the statute it is as valid and effective as if signed in the ordinary way. An analysis of the facts clearly shows that the decedent was in the extremity of his last illness ; that he requested Boreas F. Reed and Jacob T. Myers to be witnesses to his last will which he requested to be written by Cyrus G. Beales : that the will was actually written down in form and terms as submitted to the register at his dictation, and after being so written was read by the scrivener to the .decedent, when inquiry was then made if it' was as he desired it to be, to which he replied that it was. The instrument was at that moment a completed last will and testament, save only that it was not signed, by Thomas D. Reed. While the writing was being manually arranged for his signature he suddenly became unconscious, and died in less than half an hour thereafter, and by reason of the extremity of his last illness and dying condition he was prevented from signing his will, or giving directions that it should be signed for him. The affidavit for probate of the will was presented to the register the following day, and by the three persons, the scrivener and the two witnesses suggested by the decedent. Not only was the opportunity given to have the will read and explained to him, but this was actually done, and the judicial conclusion of the. register in admitting the will for probate was clearly within the cases of Aurand v. Wilt, 9 Pa. 54, and Wall v. Wall, 123 Pa. 545. The fact that it was written by pencil instead of pen does not affect its validity as was decided in Myers v. Vanderbelt, 84 Pa. 510. Furthermore, this will was admitted to probate on May 11, 1883, and the defendants in this action and their predecessors in title under the will have been in possession of the land claimed by the plaintiffs for a period of twenty-two years, and their right of possession was never challenged until August 11, 1905, when this action of ejectment was instituted. By the Act of April 22, 1856, P. L. 532, sec. 7, it is provided that the probate of the register of the proper county of any will devising real estate shall be conclusive as to such realty, unless within five years from the date of such probate those interested to controvert it shall, by caveat and action at law duly pursued, contest the validity of such will as to such realty. This was amended by the Act of June 25,1895, P. L. 305, by reducing the period within which an appeal must be taken from the decree of the register from five years to three. The time within which action must be taken is conclusive upon all parties : Cochran v. Young, 104 Pa. 333 ; McCay v. Clayton, 119 Pa. 133 ; Wall v. Wall, 123 Pa. 545. The court properly directed the jury To return a verdict in favor of the defendants for the land in dispute.

The assignments of error are not sustained and the judgment is affirmed.