text:
    Equitable Gas Company v. Smith et al.

      Kyle & Reinhart, for plaintiff; James J. Purman, for defendants.
   Sayers, P. J.

— From the petition and admissions contained in the answers thereto, we find the following facts:

1. Imri T. Smith, one of the defendants in this case, purchased and took title to a tract of land, situate in Greene Township, Greene County, Pennsylvania, containing 176.892 acres, from one Oran Grove and wife by deed dated April 1, 1913, and recorded in the recorder's office of Greene County, Pennsylvania, on May 17, 1913, in deed book vol. 231, page 136.

2. Imri T. Smith and Cinderella, his wife, conveyed the said tract of land to his two sons, Leslie C. Smith and Floyd Leo Smith, by deed of general warranty, dated Feb. 5, 1920, and recorded in the recorder’s office of Greene County on Feb. 9, 1920, in deed book vol. 272, page 320.

3. Leslie C. Smith and Grace E. Smith, his wife, by deed of general warranty, dated Feb. 9, 1920, and recorded the same day in the recorder’s office in Greene County, Pennsylvania, in deed book vol. 272, page 322, conveyed all their interest in the said tract of land to Floyd Leo Smith.

4. The deed from Imri T. Smith and wife to Leslie C. Smith and Floyd Leo Smith contains this exception or reservation:

There is also excepted from this conveyance and sale, to Imri T. Smith, during' the life of said Imri T. Smith, all the oil and gas and other minerals, the rentals and royalties that may be obtained from the leasing or operating said land with the exclusive right in said Imri T. Smith to lease said land for oil, gas and other mineral purposes on such terms and conditions as in his judgment is for best interest of all parties concerned.

A like exception or reservation in the same words is contained in the deed from Leslie C. Smith and wife to Floyd Leo Smith.

5. Imri T. Smith, at that time a widower, leased the said land to W. P. Ely for oil and gas purposes by lease or agreement dated June 7, 1923, and recorded June 27, 1923, in deed book vol. 306, at page 545, and the said lease was transferred by W. P. Ely to the Equitable Gas Company, the plaintiff and petitioner in this proceeding, by a writing dated June 19, 1923, whereby all the right, title and interest of the lessee in the aforesaid oil and gas lease was sold, assigned and transferred to the Equitable Gas Company, petitioner.

6. By said lease, the lessor did:

Grant, demise and let unto the lessee all the oil and gas in and under the following described tract of land, and also the said tract of land for the purpose and with exclusive right of drilling and operating thereon for said oil and gas, together with the right-of-way, and the right to lay pipes to convey water, oil, steam and gas, and to have sufficient water and gas from the premises to drill and operate wells thereon, also such other privileges as are necessary for conducting said operations, and the right to remove at any time all property placed thereon by the lessee. . . . But no wells are to be drilled within 250 feet of the dwelling house or barn now on the premises without the lessor’s consent.
To have and to hold the same unto the lessee for the term of five years from the date hereof and as much longer as the said premises are being operated for the production of oil or gas, or as oil or gas is found in paying quantities thereon, yielding and paying to the lessor the one-eighth part or share of all the oil saved from that produced on the premises, delivered free of expense into tank or pipe line to the lessor’s credit; and should any well produce gas in sufficient quantities to justify marketing the same in the pipe line, the lessor shall be paid at the rate of One hundred ($100.00) dollars quarterly for such well, so long as the gas therefrom is conveyed and sold off the premises, the first payment to mature ten days after well is completed, and every three months thereafter. . . .
Provided, however, that this lease shall become null and void and all the rights thereunder shall cease and determine unless one well shall be completed on the said premises within ten days from the date hereof, or unless the lessee shall pay at rate of Eighty-eight ($88.00) dollars in advance for each additional three months such completion is delayed from the time above mentioned for the completion of said well until one well is completed.

The lease further provided that all payments should be made to Imri T. Smith at Davistown, Pa., and contained a provision for the use of gas for light and heat in the mansion house on said premises free of cost to the lessor and extended the provisions of the lease to the heirs, executors, successors and assigns of the respective parties.

7. The Equitable Gas Company, a corporation of Pennsylvania, having its principal office at Pittsburgh, Pa., was engaged in the drilling, operating and development of lands for oil and gas purposes, whereby it obtained its supply of gas for distribution to its customers, and some time in September of 1927 it entered upon the lands described in the aforesaid lease and made a location for a well to be drilled on said land and contracted for the erection of a rig for the drilling of said well and delivered certain equipment therefor on the leased premises in preparation for the commencement of operations under the lease.

8. On September 29, 1927, Floyd Leo Smith served a written notice upon the Equitable Gas Company, a copy of which is as follows:

Waynesburg, Pa., Sept. 29, 1927.
To Philadelphia Company and Equitable Gas Company:
Sirs: Having this day learned that you have made a location for and are about to drill an oil or gas well upon a tract of land situate in Greene township, Greene county, Pennsylvania, containing one hundred seventy-six acres, more or less, which land was leased by Imri T. Smith to W. P. Ely by lease dated June 7, 1923, recorded in deed book vol. 306, page 545, and by said W. P. Ely assigned to you.
These are therefore to notify you that at the time said lease was made Imri T. Smith was not and that he has not been since owner of said land or any part thereof. That I am sole owner of said land and my title thereto is of record in deed book vol. 272, pages 320 and 322. That the only right, title or interest of Imri T. Smith in and to the oil and gas in and under said land is during the life of said Imri T. Smith, which right is reserved in deed dated February 5, 1920, recorded in deed book vol. 272, page 320.
You are further notified that I protest your operating said land under said lease and that upon the death of Imri T. Smith I will assert my rights as against you.
Hereof fail not. FLOYD LEO SMITH.

9. After receiving said notice, the petitioner plaintiff ceased to pursue its drilling operations on said lease any further, and no oil or gas well has been completed on the tract of land; but the stipulated delay rental of $88 in advance for each additional three months after the first ten days of said lease has been regularly paid by the lessee and its assignee to the present time, and the aforesaid lease, which would have expired by its terms, has been extended by an agreement in writing between the lessor and the present holder of the lease, the petitioner plaintiff.

10. The plaintiff petitioner filed a petition under the Uniform Declaratory Judgments Act of June 18, 1923, P. L. 840, requesting the court to construe the deed, lease and the assignment of lease, copies of which were attached to the petition, and to determine the extent of the title and right of the petitioner to operate for oil and gas under the said tract of land, it being claimed by Floyd Leo Smith, one of the defendants in said action, that Imri T. Smith, the lessor in said lease, could only grant, demise and lease to the lessee the land for the term and period of the natural life of the said Imri T. Smith, and that thereafter the said oil and gas that may then remain in and under said tract of land would become vested in the said Floyd Leo Smith, and could not thereafter be in any manner affected by any oil or gas lease placed thereon by the said Imri T. Smith.

11. The petition prays for a judgment or decree of the court, declaring:

First. That the deed dated Feb. 5, 1920, from Imri T. Smith and Cinderella Smith, his wife, to Floyd Leo Smith and Leslie C. Smith, recorded in deed book vol. 272, at page 320, in the office for the recording of deeds of Greene County, Pennsylvania, and herein set forth as Exhibit “A,” is and shall be construed as excepting and reserving to said Imri T. Smith, during the life of said Imri T. Smith, all the oil and gas and other minerals, the rentals and royalties that may be obtained from the leasing or operating said land; and excepting and reserving unto said Imri T. Smith the right, exclusive in him during his lifetime, to lease said land for oil, gas and other mineral purposes, on such terms and conditions as in his judgment is for the best interest of all parties concerned, whether or not the term of a lease so made by said Imri T. Smith should or might run beyond the lifetime of said Imri T. Smith.

Second. That after the death of Imri T. Smith, any rents or royalties becoming due under the terms of any gas, oil or other mineral lease, or any renewal or extension thereof, made by Imri T. Smith and continuing in force and effect beyond the lifetime of said Imri T. Smith, shall be paid to Floyd Leo Smith and Leslie C. Smith, the grantees of Imri T. Smith in his deed above referred to, or their lawful heirs or assigns, as remaindermen after the termination of the life interest excepted and reserved to Imri T. Smith in said deed.

Third. After the death of Imri T. Smith, all right, title and interest in and to the oil, gas and other minerals in, on or under the aforesaid tract of land, shall vest in Floyd Leo Smith and Leslie C. Smith, the grantees of Imri T. Smith in his deed hereinabove referred to, or their lawful heirs or assigns as' remaindermen, after the termination of the life interest excepted and reserved to Imri T. Smith in said deed, subject, however, to any oil, gas or other mineral lease, or any renewal or extension thereof, made by Imri T. Smith in his lifetime, so long as such lease or any renewal or extension thereof shall continue in force and effect beyond the lifetime of said Imri T. Smith.

Fourth. That the lease dated June 7, 1923, from Imri T. Smith to W. P. Ely, recorded in deed book vol. 306, at page 545, in the office for the recording of deeds of Greene County, Pennsylvania, and herein set forth as Exhibit “B,” together with the assignment of said léase, dated June 19, 1923, from said W. P. Ely to Equitable Gas Company, a corporation, herein set forth as Exhibit “C,” vests in the Equitable Gas Company, the said assignee, full and complete title to the oil and gas under the tract of land described in the aforesaid lease, together with the right to drill for and take such oil and gas and all the other rights and privileges set forth in said lease or incident thereto, subject to the covenants therein contained, during the term of said lease and any renewal or extension thereof, as fully as though the deed dated Feb. 5, 1920, from Imri T. Smith and Cinderella Smith, his wife, to Floyd Leo Smith and Leslie C. Smith, recorded in deed book vol. 272, at page 320, in the office for the recording of deeds of Greene County, Pennsylvania, had never been executed; and that such full and complete title and all said rights and privileges shall be and remain in the Equitable Gas Company, their successors or assigns, during the full term of the aforesaid lease and any renewal or extension thereof, whether or not the term of the said lease, or any renewal or extension thereof, shall or may run beyond the lifetime of Imri T. Smith.

Fifth. That the costs of this proceeding be paid by Floyd Leo Smith up to and including decree by the Court of Common Pleas of Greene County.

12. Answers were filed by all of the above defendants except Floyd Leo Smith, and they joined in the prayer of the original petition, and these defendants were joined in the proceeding because of any interest they or any of them might have or claim to have which might be affected by a declaration of rights or other legal relations as prayed for in the petition.

13. Floyd Leo Smith filed his separate answer, denying the right of Imri T. Smith to place a lease for oil and gas purposes upon said land, the life of which, by express words, by implication or otherwise, could extend beyond the period of his natural life, he having but a life estate in said oil and gas and claiming, consequently, that the Equitable Gas Company, plaintiff petitioner, operating said land for oil and gas under the said lease from Imri T. Smith, can operate during his lifetime only and not thereafter.

14. The answer of Floyd Leo Smith denies the jurisdiction of the court to enter a declaratory judgment which could affect respondent’s title to the oil and gas in any manner whatsoever, and demands that an issue be framed and tried by a jury as provided by section 9 of the Uniform Declaratory Judgments Act.

15. The defendant, Floyd Leo Smith, at various places in his answer filed, places his construction upon the disputed clause as set forth above and denies the right of Imri T. Smith to place a lease for oil and gas purposes upon said land that would have any effect or convey any title or right to operate the said oil and gas beyond the lifetime of the said Imri T. Smith.

Discussion.

Without going into an extended discussion of the reasons therefor, it seems to the court that this case is one of the class that is peculiarly within the terms of the Uniform Declaratory Judgments Act. The petition prays for a declaration of rights, status and other legal relations growing out of the clause in the deed, the meaning of which is disputed, and which the plaintiff petitioner claims empowers or enables the grantor in the deed to lease certain lands for oil and gas purposes beyond the term of his natural life for the benefit of all parties concerned under the deed, and to take unto himself, and the remaindermen after his death, the rentals and royalties reserved in the said lease.

It seems to me that there is no difficulty about the court assuming jurisdiction in this case. There are not only the ripening seeds of a controversy in this case, but an actual controversy exists between the parties to this proceeding, all of whom are sui juris and before the court. A declaration such as is sought here, defining and declaring the rights, status and other legal relations of all the parties concerned, when properly and finally adjudicated, will terminate the uncertainty and controversy giving rise to this proceeding. There is no action of law to which the petitioner plaintiff can betake itself, no injunction or proceeding in equity or other statutory proceeding affording relief, and all it possibly can do under the facts and circumstances is to obtain a declaratory judgment in this case, abandon the lease or leasehold upon which it has expended its money, or develop the lease at considerable more expense and run the risk of being deprived of its property and estate in the lease or leasehold as it may exist at the date of the death of Imri T. Smith.

There are no issues of fact in this ease which need be tried by a jury. The admitted facts bring before the court everything necessary to show the entire dispute, and these undisputed facts, coupled with the interpretation asserted by the petitioner and the contrary interpretation of Floyd Leo Smith, without more, are all that need to be considered by the court. The facts set up in the petition as to what occurred at the execution of the deed and the intention of the grantor therein in inserting the disputed clause in the deed, and the denial by Floyd Leo Smith of the facts surrounding the execution of the deed and as to what was intended by the disputed clause inserted therein, do not enter into the consideration of this controversy. There is no attempt here to reform the deed or to construe it by any of the extraneous facts or circumstances. It is not necessary to consider anything outside of the written deed and agreement of lease submitted in this case. The admitted facts in the case are sufficient to enable the court to adjudicate this case, and the denied facts, which are the only facts that could be submitted to the jury, are immaterial to this issue.

What we are asked to do here is not to impose equitable terms on disputing parties, but to determine fixed legal rights: Ladner v. Siegel, 294 Pa. 368, 373.

What estate does Imri T. Smith have in the oil and gas? There is no need to go into an extended discussion of what constitutes a reservation and what an exception. The distinction is sufficiently set forth in a recent decision of the Supreme Court so far as it need be applied to this ease. “ ‘A reservation is the creation of a right or interest which had no prior existence as such in a thing or part of a thing granted. It is distinguished from an exception in that it is a new right or interest. An exception is always of part of the thing granted, it is of the whole of the part excepted. A reservation may be of a right or interest in the particular part which it affects. These terms are often used in the same sense, the technical distinction being disregarded:’ Kister v. Reeser, 98 Pa. 1, 5; Schmidt v. Lieberum, 54 Pa. Superior Ct. 500. The intent of the grantor must be disclosed by the words used: Mandle v. Gharing, 256 Pa. 121; Sheffield Water Co. v. Elk Tanning Co., 225 Pa. 614:” Lauderbach-Zerby Co. v. Lewis, 283 Pa. 250, 254.

The case of Mandle v. Gharing, supra, expresses clearly the rule as to the cessation of a right at the death of grantor in cases of unqualified reservations. Mr. Justice Mestrezat there said: “The real question in the case is whether the clause in question was intended to operate as an exception or a reservation of the oil and gas from the grant made by Gharing to his grantees. Though apt words of reservation be used, says Trunkey, J., in Kister v. Reeser, 98 Pa. 1, 5, they will be construed as an exception if such was the design of the parties. In Lillibridge et al. v. Lackawanna Coal Co., 143 Pa. 293, 308, Mr. Justice Green says that an exception and reservation differ in legal effect, ‘but in their creation ‘there is no magic in words,’ and if the meaning is clear, either expression will operate for the purpose designed.’ The technical distinction between an exception and a reservation is frequently disregarded in the ordinary use of the words, and, therefore, whether the language used in any particular case creates an exception or a reservation must be determined from the intention of the parties ascertained from the entire instrument. If a particular clause be construed as an exception from the grant, no words of inheritance are necessary, because title to the excepted part remains in the grantor and never passes to the grantee; but if it be construed as a reservation, words of inheritance are necessary, otherwise the right ceases at the death of the grantor, because the grantor creates a reservation to himself of some new right or thing out of the property which he has granted and which was not in existence at the time of the granting: Whitaker v. Brown, 46 Pa. 197.” That case related to an exception and reservation of oil and gas, and it was there decided: “4. Where the owner of a tract of land conveyed the same by a deed, which, inter alia, provided ‘excepting and reserving from the above all oil or gas produced from the said undivided one-fourth of the above described tract of land,’ the lower court properly held that the words created an exception, that the title to the oil and gas remained in the grantor and at his death vested in his residuary devisee.”

The habendum is made “subject to the exceptions and reservations aforesaid,” but no other subsequent clauses of the deed explain or qualify the disputed clause (Laidley v. Rowe, 275 Pa. 389, 395), and they need not be considered. They do not affect the exception or reservation in any way or the dispute as to their interpretation.

For the purpose of proper consideration, the distinctive parts of the paragraph in dispute may be readily divided into two clauses, the first of which ends with the word “land” in the middle of the paragraph. There is little room for dispute as to the character of the first clause as indicated. It is an exception and so denominated in the clause itself, which starts off with the language, “there is also excepted from this conveyance,” etc. This is followed in the second or last clause with what might more properly be termed a reservation, beginning with the words, “with the exclusive right in the said Imri T. Smith to lease said land,” etc.

■It seems to the court unnecessary to elaborate as to the character and effect of the latter clause. It is a reserved power, coupled with an interest, only limited by the judgment of Imri T. Smith as to the terms and conditions that are for the best interest of all parties concerned.

“No formal set of words is requisite to create or reserve a power. It may be created by deed or will, and it is sufficient that the intention be clearly declared. The creation, execution, and destruction of powers, all depend on the substantial intention of the parties; and they are construed equitably and liberally in furtherance of that intention. [Nor is it material whether the donee of the power be authorized to limit and appoint the estate, or whether the language of the settlement goes at once to the practical effect intended and authorizes the donee to sell, lease or exchange. A devise of an estate generally or indefinitely, with a power of disposition over it, carries a fee. But where the estate is given for life only, a devisee takes only an estate for life, though a power of disposition, or to appoint the fee by deed or will, be annexed; unless there should be some manifest general intent of the testator, which would be defeated by adhering to this particular intent] : 4 Kent’s Commentaries, 319:” Graeff v. DeTurk, 44 Pa. 527, 531.

The manifest general intent of the- grantor donee in this case is to secure first to himself the rentals and royalties that may be obtained from leasing or operating the land during his life and after his death to secure what remains to the parties thereafter entitled to take any reversion or remainder. The exercise by Imri T. Smith of his power to lease the oil and gas was an exercise of his judgment for the best interest of all parties concerned, and the terms and conditions in the lease involved in this case are dictated by the best judgment of the said Imri T. Smith for the best interest of all parties concerned.

“Powers may be granted, whether by deed, will, or otherwise, either expressly or impliedly. Whether a particular power is expressly created in any case is a question of intention and construction; and in like manner it is a question of intention and construction whether a power is to be implied from the provisions of a will, deed or other instrument. No particular form of words is necessary to create a power under a will or deed; any words, however informal, which clearly indicate an intention to give or reserve a power are sufficient for that purpose. The whole intention must be looked at and a power may be given in any part of the instrument, whether before or after conveyance of the estate:” 31 Cyc., 1044 B. A power may be reserved as well as granted: Hagedorn v. Goodin, 24 Dist. R. 204; Egbert v. de Solms, 218 Pa. 207.

A mere naked power is revocable at the will of the donor or grantor, but where a power is coupled with an interest, it is irrevocable: 31 Cyc., 1051; Frederick’s Appeal, 52 Pa. 338. A power coupled with an interest means an interest in the subject-matter over or concerning which the power is to be exercised, and it is not sufficient that the interest is in that which is to be produced by the exercise of the power: White’s Appeal, 36 Pa. 134, 139; Hartley’s Appeal, 53 Pa. 212; 91 Am. Dec. 207; 7 A. L. R. 938, 948; 31 Cyc., 1043.

It is contended by the defendant respondent, Floyd Leo Smith, that a reservation in a deed is to be construed most strongly against the grantor, citing Grubb v. Grubb, 101 Pa. 11, 15; Richardson v. Clements, 89 Pa. 503, and other cases setting forth the same rule; and that a doubtful reservation or exception will be construed most strongly against the grantor: Klaer v. Ridgway, 86 Pa. 529; Taylor v. Smith, 2 Wharton, 432, 436. It will be noted, however, in Richardson v. Clements (page 505) that this rule is only to be applied where the language is doubtful: “It has no place when the language is sufficiently clear to define the character and extent of the exception or reservation.” We do not agree that this rule of construction is to be adhered to in the instant case, but feel that a more liberal construction should be applied and the power reserved in this case by the owner should be liberally construed as a part of his ancient estate and should receive the construction most favorable to the original owner: 31 Cye., 1057.

It is undoubtedly true that, “unless conferred expressly or by implication, the owner of a life or other limited estate has no power to grant leases binding upon the remainderman.” This principle we believe to be correct, but in the present case not only the language itself but the well known conditions obtaining in the oil and gas industry give rise to the unquestionable implication that Imri T. Smith was to have the right or power to lease the land for oil and gas, according to the usual practice. Without this right, which in this case involves the granting of a lease for a term extending beyond the life estate, he would have no opportunity to enjoy the rentals or royalties that might be obtained. Before any royalties could be obtained, the lessee would have to expend a large sum of money in drilling for oil or gas, and no operating company would take the chance of so drilling if the well and the lease could be taken from them on the death of Imri T. Smith, which might occur at any time.

Plainly, the parties had in mind and intended, and we think expressly so stated, that when Smith conveyed the land to his sons he reserved the right to place an oil and gas lease on it, and, if operated, to get the rents and royalties for his own use so long as he should live. If this were not the intention, what was meant by the expression that he was to have the exclusive right to lease the land for oil and gas on such terms and conditions as in his judgment is for the best interest of all parties concerned? No limit whatever was placed upon his judgment and determination as to what kind of a lease should be granted and how long it should continue.

The respondent, Floyd Leo Smith,- admits in his answer that Imri T. Smith had a right to make the lease for the oil and gas and admits that petitioner has a right to operate under the lease, but claims that petitioner’s right will terminate upon the death of Imri T. Smith. An examination of the reservation of the life estate in the oil and gas, coupled with the exclusive right to lease, shows that the right to lease is a power to lease “said land for oil and other mineral purposes.” It is not as respondent claims, a right to lease the oil and gas in which Imri T. Smith reserved a life estate, but it is a right or power to lease the land in which Imri T. Smith did not have a life estate, and, therefore, there is no implication or inference that the term of the lease is to be limited to the term of the life estate. He reserved the power to bind the land already in the possession of Floyd Leo Smith with this lease. The income from the lease, either rentals or royalties, is to go to Imri T. Smith during his life, and after his death the remaindermen will receive the profits.

A contract should be construed in the light of existing facts and circumstances under which the parties entered into it. It should be so interpreted as to effect the objects in respect to which the parties proposed to contract: Richardson v. Clements, 89 Pa. 503, 505. Every agreement is to be interpreted and construed with reference to the circumstances under which the parties contract and the well known customs prevailing: Callen v. Hilty, 14 Pa. 286, 288; Berridge v. Glassey, 112 Pa. 442, 455; Reading v. Traction Co., 202 Pa. 571, 575; and the objects manifestly to be accomplished: Kendall v. Klapperthal Co., 202 Pa. 596, 610. It seems to have been well known to the grantor and grantees in the deed that an oil and gas lease for the term of the natural life of Imri T. Smith would be of no value to him or any one else. No producer would develop a lease of that uncertain duration. This farm is in a territory where oil and gas and leasing terms have been household words since 1888, and the language of the deed indicates that the parties knew what the law presumes they should know, that a life tenant without power to lease oil and gas could not grant or lease the necessary easements or right of entry on land in order to drill and develop a lease.

It is contended by Floyd Leo Smith that the court has no jurisdiction because the Equitable Gas Company is not a party to the deed and has no interest in the title or estate granted by the deed; that the lease and assignment thereof do not create an estate in the land, but a mere license to explore during the life of Imri T. Smith; that the lease further violates the reservation in the deed by granting rights of way to lay pipes, use water and other privileges which the respondent claims would be injurious to the land and in the nature of waste. It is further claimed that the construction sought by the petitioner plaintiff seeks to reform the deed, and that the petitioner is a mere volunteer and has no right to obtain a declaration of rights under the deed. Most of these matters have been covered generally by the discussion, and we feel that, with the exception of the following matter, they need not be further considered.

The agreement between Imri T. Smith and the Equitable Gas Company is a lease for oil and gas purposes and not a mere license to explore. In Barnsdall v. Bradford Gas Co., 225 Pa. 338, it was held: “Where an instrument in writing does ‘grant, demise, lease and let unto the said party of the second part ... all that certain tract of land . . . containing 100 acres, . . . for the sole and only purpose of mining and operating for oil, gas and other minerals and of laying pipe lines and of building tanks, stations and structures thereon to take care of the said products,’ the paper creates a corporeal interest in the lessee in the demised premises and is not merely a license to enter and operate for oil and gas; and the lessee, although he never entered into possession of the premises, may maintain an action to recover possession from a third party not claiming under the lessor.

“When, under such a grant, oil has been discovered, it is the grantee’s right to produce it and sever it from the soil; so much as is thus severed belongs to the parties entitled under the terms of the grant, not as any part of the real estate, however, but as a chattel, and only so much as is produced and severed passes under the grant; as to all not produced, there is no change of property:” Kelly v. Keys, 213 Pa. 295, 298. In some more recent cases it has been held that a grant of the oil and gas under the land, with the right to drill and operate for the same, is a sale of the oil in place, but whether we construe the lease in the instant case as a sale of the oil in place or the grant of an exclusive right to mine for and produce oil, the best authorities seem to indicate that the agreement under consideration is a lease for oil and gas purposes. “Mineral contracts partaking of the nature of sale or demise will be treated as leases:” Spence v. Lucas, 138 La. 763, 70 So. Repr. 796; Cooke v. Gulf Refining Co., 135 La. 609, 65 So. Repr. 758. “A conveyance containing both the words of a deed or grant and of a lease covering coal, salt, oil and other mineral rights on land known to have produced oil was construed with reference to the known condition at the time of its delivery and by the construction of the parties to be a lease and not a conveyance: McMillin v. Titus, 222 Pa. 500, 72 Atl. Repr. 240:” Morrison, etc., Oil and Gas Rights, 56. In the last recited case, a Greene County case, the grant was of the sole, separate and exclusive right of prospecting, examining and searching for coal, minerals, oil, etc., and the right and privilege to dig, excavate, bore and sink pits and wells for the same, and it was held in that case that the paper in question was a lease of the oil, gas, salt, etc., instead of a conveyance of the coal, which was the principal subject of the controversy in that case.

In accordance with the foregoing opinion, the court answers the foregoing specific requests for declaratory judgment, as set forth in the prayer of the petition, in the affirmative, and judgment is accordingly entered, at the costs of the defendant, Floyd Leo Smith, as follows:

And now, July 15, 1929, this case came on to be heard upon a petition and answers, and after argument of counsel and on due consideration thereof, it is ordered, adjudged and decreed, accordingly, that:

First, that the deed dated Feb. 5, 1920, from Imri T. Smith and wife to Floyd Leo Smith and Leslie C. Smith, recorded in deed book vol. 272, at page 320, in the office for the recording of deeds in Greene County, Pennsylvania, is and shall be construed as excepting and reserving to said Imri T. Smith, during the life of said Irmi T. Smith, all the oil and gas and other minerals, the rentals and royalties that may be obtained from the leasing or operating of said land; and excepting and reserving unto said Imri T. Smith the right, exclusive in him during his lifetime, to lease said land for oil, gas and other mineral purposes on such terms and conditions as in his judgment is for the best interest of all parties concerned, whether or not the term of a lease so made by said Imri T. Smith should or might run beyond the lifetime of said Imri T. Smith.

Second. That after the death of Imri T. Smith any rents or royalties becoming due under the terms of any gas, oil or other mineral lease, or any renewal or extension thereof, made by Imri T. Smith and continuing in force and effect beyond the lifetime of said Imri T. Smith shall be paid to Floyd Leo Smith and Leslie C. Smith, the grantees of Imri T. Smith in said deed, or their lawful heirs or assigns as remaindermen after the termination of the life interest excepted and reserved to Imri T. Smith in said deed.

Third. All right, title and interest in and to the oil, gas and other minerals in, on or under the aforesaid tract of land shall vest in Floyd Leo Smith and Leslie C. Smith, the grantees of Imri T. Smith in his deed hereinbefore referred to, or their lawful heirs or assigns as remaindermen, after the termination of the life interest excepted and reserved to Imri T. Smith in said deed, subject, however, to any oil, gas or other mineral lease, or any renewal or extension thereof, made by Imri T. Smith in his lifetime, so long as such lease, or any renewal or extension thereof, shall continue in force and effect beyond the lifetime of said Imri T. Smith.

Fourth. That the lease dated June 7, 1923, from Imri T. Smith to W. P. Ely, recorded in deed book vol. 306, at page 545, in the office for the recording of deeds of Greene County, Pennsylvania, together with the assignment of said lease, dated June 19, 1923, from said W. P. Ely to Equitable Gas Company, vests in the Equitable Gas Company, the said assignee, title to the oil and gas under the tract of land described in the aforesaid lease, together with the right to drill for and take such oil and gas, and all the other rights and privileges set forth in said lease or incident thereto, subject to the covenants therein contained, during the term of said lease, and any renewal or extension thereof, with the same force and effect as though the deed dated Feb. 5, 1920, from Imri T. Smith and wife to Floyd Leo Smith and Leslie C. Smith, had never been made; and that said oil and gas and all said rights and privileges granted and devised therewith shall be and remain in the Equitable Gas Company, their successors or assigns, as provided by the terms and conditions of said agreement of lease, or extension thereof, even though the term of said lease or leasehold estate thereunder may continue and extend beyond the lifetime of Imri T. Smith.

Judgment as above declared is accordingly so entered.

From S. M. Williamson, Waynesburg, Pa.


source: Caselaw Access Project

author: Schnader, Special Dep. Att’y-Gen.,

license: Public Domain

text:
    Jurisdiction of Department of Revenue.
    March 26, 1930.
   Schnader, Special Dep. Att’y-Gen.,

— We have your request to be advised with regard to the following questions:

1. What is the relation of the Department of Revenue to the departments, boards and commissions that continue to collect certain fees, etc.?

2. When a license or other fee is fixed by law, is it the duty of the Department of Revenue, or its agent, to see that all fees for licenses issued and services performed are properly charged or billed as well as collected?

3. When fees, fines or penalties are to be fixed and assessed by a department, board or commission, is it the duty of the Department of Revenue, or its agent, toi see that these fees, fines and penalties are charged or billed in accordance with the rules and regulations of such State agency?

Your questions arise under section 605 of The Fiscal Code (Act of April 9, 1929, P. L. 343), which provides that: “Subject to any inconsistent provisions elsewhere in this act contained, every administrative department, every independent administrative board or commission, and every departmental administrative board or commission of the State Government, which is authorized by law to collect any taxes, fees, charges, or other moneys, payable to such department, board, or commission, for its use, or for the use of the Commonwealth, for registrations, licenses, examinations, inspections, services rendered, permits, or any other purpose or reason whatsoever, shall continue to collect such taxes, fees, charges, or other moneys, and, subject as aforesaid, shall continue to collect all fines, penalties, and bail forfeited, which it is authorized by law to collect, but the Department of Revenue shall assign to any such department, board, or commission, an agent, or designate as its agent an employe of such department, board, or commission, for the purpose of receiving all moneys payable to such department, board, or commission.”

Another provision of The Fiscal Code which is relevant is that contained in section 1210, as follows: “All collections of every kind and description, which any department, board, or commission of the State Government is by this act authorized to continue to make, shall be turned over immediately upon the receipt thereof to the agent of the Department of Revenue assigned to or designated in such department, board, or commission.”

Under these provisions, it is quite clear that, except in the cases in which The Fiscal Code specifically imposes upon your Department the duty of collecting revenue, the departments, boards and commissions which were required to collect the same prior to the passage of The Fiscal Code continue to be charged with this responsibility. Their responsibility ceases, however, the moment the revenue is received at their respective offices. They have no right to handle the money thus received, but must turn it over forthwith to your Department, acting through an agent especially appointed for the purpose, or an employee of the other department or board or commission designated to act as your agent.

Your responsibility begins when the revenue reaches the collecting department, board or commission, and you are chargeable only with the actual amounts received.

Accordingly, it is not the duty of your Department to see to it that the amount collected is that which a statute or a rule or regulation requires to be collected. The responsibility for seeing that the proper amount has been collected is imposed by section 401 of The Fiscal Code upon the Department of the Auditor General and not upon your Department.

So that there may be no misunderstanding of the effect of the opinion here expressed, we desire to make it clear that your Department has the direct responsibility:

1. For the collection of all taxes formerly collectible by the Department of the Auditor General and the Treasury Department, or either of them, and by the Insurance Department or the Insurance Commissioner;

2. For seeing that the proper amount is collected for all motor vehicle registrations, operators’ licenses and other fees formerly collectible by the Highway Department in connection with the licensing of motor vehicles and the operation thereof;

3. For seeing that the correct amount is collected for hunters’, fishermen’s and dog licenses;

4. For the collection of property escheatable to the Commonwealth;

5. For the collection of all amounts payable for the maintenance of all inmates or patients of State hospitals and penal and correctional institutions, and for tuition and maintenance of pupils at State educational institutions;

6. For the collection of amounts payable by political subdivisions of Pennsylvania as their share of the cost of improving and rebuilding highways; and

7. For all collections of fines and penalties from magistrates, aldermen, justices of the peace, burgesses and mayors.

To state the matter differently, this opinion does not have any bearing upon the duties of your Department, under sections 202 to 206, inclusive, of The Fiscal Code, but only to collections not embraced within those sections.

From C. P. Addams, Harrisburg, Pa.


author: Houck, J.,

text:
    Musser v. Fehr.

      George M. Roads, for plaintiff; C. E. Berger, for defendant.
    April 28, 1930.
   Houck, J.,

— This is an action on a promissory note and the facts set forth in the statement of claim are affirmatively stated and purport to be founded upon plaintiff’s own knowledge. In the affidavit to the statement of claim it is stated that plaintiff, being duly sworn, “saith that the facts set forth in the foregoing statement of claim are correct and true to the best of his knowledge and belief.” The defendant moved to strike off the statement for the reason that the verification thereof is defective and in violation of section 9 of the Practice Act of 1915, in that the plaintiff merely deposes and says that the facts set forth in the statement of claim are true and correct to the best of his knowledge and belief.

Where facts are affirmatively stated and purport to be founded upon plaintiff’s own knowledge, the affidavit of plaintiff for the verification of the statement of claim is required to be in the form of an affirmative declaration absolute in form: Bechman v. Hershey Creamery Co., 30 Dauphin Co. Reps. 399, 404; Dayhoff v. Masland, 29 Dist. R. 393; Hasler & Co., Inc., v. Forde Construction Co. et al., 10 D. & C. 641, 645. The verification in this case is not absolute but is qualified by the phrase “to the best of his knowledge and belief.” This court has already held that such an affidavit is insufficient: Paul v. Hargey, 10 D. & C. 82. The facts being within the knowledge of the plaintiff, he should swear that they are true and correct, not that they are true and correct to the best of his knowledge and belief.

For the reasons stated, the statement of claim must be stricken off, but plaintiff will be allowed to file a new statement of claim under the provisions of section 21 of the Practice Act of May 14, 1915, P. L. 483.

Plaintiff’s statement of claim is stricken from the record and plaintiff is allowed fifteen days from this date in which to file a new statement of claim.

From M. M. Burke, Shenandoah, Pa.


author: Gest, J.,

text:
    Paine’s Estate.

      Joseph G. Denny, Jr., for petitioner.
    May 9, 1930.
   Gest, J.,

— This petition was filed in order to obtain the opinion of the court upon the construction of the will and especially upon the question whether Edward J. Paine, the surviving son of the testator, is entitled to all of the rents of the real estate specified, or is entitled only to one-half thereof, the other one-half belonging to the grandchildren of the testator.

The rents are not before the court in any account for distribution, the petition stating that they are in the hands of a real estate agent, who is not a party to the proceedings. It is quite clear that we can grant no affirmative relief against him. However, under the Declaratory Judgments Act of June 18, 1923, P. L. 840, it seems that it is not essential to our jurisdiction that affirmative relief should be asked for, although, as we suggested in Duff’s Estate, 4 D. & C. 315, the power to pronounce a merely declaratory judgment without the power to grant consequential relief should be exercised with the greatest caution. The court which can enforce the rights of the parties should be the one which declares them, and as our judgment would not necessarily terminate the controversy, we would, if we relied upon our own views of the law, dismiss the petition for this reason. The Supreme Court, however, has in several cases construed the act more broadly: B’Nai B’rith Orphanage v. Roberts, 284 Pa. 26; Kariher’s Petition (No. 1), 284 Pa. 445; and Kidd’s Estate, 293 Pa. 21.

When in 1904 the executrices filed their account during the lifetime of the three daughters, their account included rents which the executrices had no business to collect, and Judge Ferguson, who was the Auditing Judge, might well have declined to award distribution. He did so, however, and discussed the will, stating, inter alia: “This will was written by the testator himself. What he meant is the merest conjecture, and as to finding out the meaning of his words, that is impossible.” Since then, however, the daughters have died, so it seems that the questions presented must be decided as best we can.

The testator left three daughters, Fannie, Annie and Margaret, and one son, Edward J. Paine. Fannie died in 1911 without issue. Annie Cornog died in 1917, having survived her husband, Isaac, who died in 1908, and she left one son, Isaac Cornog, Jr., who is the present petitioner. Margaret died in 1927, without issue, and the son of the testator, Edward J. Paine, is living and has issue, three sons and four grandchildren, children of a deceased daughter, Fannie Michener, one of whom is of age, the other three being minors represented by a guardian.

The will devised three parcels of real estate to his three daughters in terms substantially equivalent to life estates, and at their deaths, without leaving issue, the testator directed that these properties should “go to my Third and Vine Streets property,” which can only mean that the testator intended their disposition to be the same as that directed with regard to the property at Third and Vine Streets.

So far as No. 718 North 44th Street is concerned, the will bequeathed the same to Annie, and provided that if she dies before her son, Isaac, it goes to him, but if mother and son dies, then it goes to Isaac, the husband, and if he dies it goes to testator’s Third and Vine Streets property as afterwards directed. Annie Cornog died in 1917, and her husband, Isaac P. Cornog, died in 1908. Isaac P. Cornog, Jr., is living and is the present petitioner, and, as we read this paragraph of the will, is entitled to the rents of No. 718 North 44th Street.

Premises No. 3602 Melon Street were devised to Fannie, for life, and in default of children this property goes, as the testator says, to “my Third and Vine Streets property.” Fannie died in 1911, without issue. The testator devised No. 733 Brooklyn Street to his daughter, Margaret, upon the same conditions, and she died in 1927, without issue, so that the devolution of these properties is the same as that directed with reference to the Third and Vine Streets property.

As to his Third and Vine Streets property, the testator directed in his will as follows: “The rents from Third and Vine Streets, and or any other income is to be equally divided — I should say from Third and Vine Streets or any other income is to be equally divided among my three daughters, Annie, Fannie and Margaret. When one of them dies then the income is to be divided between the other two. When one of them dies then the income is to be divided between the remaining one and my son Edward. When one of them dies it is to be divided between the remaining one and my grandchildren.” And by his codicil the testator directed: “When my son dies, then my grandchildren gets half the income from the estate until it be settled, they paying half the expenses of the ground rent, taxes, water rent and any repairs that may be needed. And to be settled as soon as convenient after the death of my children.”

The three daughters are all dead. Edward, the son, is living, and there are grandchildren living as stated, viz.: Isaac Cornog, Jr., and the children and also four grandchildren of Edward J. Paine, whose rights are to be determined.

Edward J. Paine claims to be entitled to the whole of the rentals. Under the will the income was divisible between Margaret, the surviving daughter, and Edward, and “when one of them dies . [and Margaret has died] it [the income] is to be divided between the remaining one [i. e., Edward] and my grandchildren,” so that Edward would be entitled only to one-half and the grandchildren to the other one-half. It is argued that the codicil, written when all the children were living, postpones the interest of the grandchildren until after the death of Edward J. Paine, so that he, by necessary implication, is entitled to all the rents; otherwise there would be an intestacy as to one-half thereof. It seems to us that this is a forced construction. If this had been the testator’s intention, he would naturally have said that on the death of the last survivor of the daughters, Edward should take all of the rents.

It is clear, at least, that the codicil is restricted in its operation to the Third and Vine Streets property, and, of course, to the other properties only on the deaths of the life tenants thereof.

When the testator says “when my son dies, etc.,” he refers to an event that must certainly occur, but the said son, Edward, might die before the survivor of his sisters, the testator’s daughters, or he might be the last survivor of them, which was, in fact, the case. We think that the testator, having made his original will as quoted, reflected that the first contingency might occur, i. e., that Edward might die before the survivor of his sisters, and, therefore, by the codicil in question, meant: “When my son dies [before the survivor of my daughters] then my grandchildren get [his] half the income from the estate until it be settled,” which simply affirms the will. Even assuming that the testator contemplated that his son might survive his daughters, the codicil is susceptible of a logical construction, thus: “When my son dies [being the last survivor of my children] then my grandchildren get [his] half the income, etc.” This latter construction interprets the gift of half the income at the death of the son as cumulative, i. e., in addition to the gift of half the income at the death of the survivor of the daughters, leaving only the son surviving.

Where the testator speaks of the settlement of the estate, he means naturally the final distribution thereof after the death of all of his children, for he adds “and to be settled as soon as convenient after the death of my children.”

Our conclusion, therefore, is, in accordance with the will, that Edward receives one-half of the rents and the grandchildren receive the other half. These grandchildren appear to be Isaac P. Cornog, Jr., and Robert E., Fred H. and Wm. M. Paine, children of Edward J. Paine. This raises the question whether the four children of Fannie P. Michener, a deceased daughter of Edward J. Paine, are entitled. The general rule from Hallowell v. Phipps, 2 Wharton, 376, to the present time on this point is that the word “children” in a will includes grandchildren only where such a construction appears clearly to have been the intention of the testator or to be necessary to make the will operative. See Burk’s Estate, 21 Dist. R. 357, where several cases are cited. We conclude, therefore, that there is no gift here to the Michener grandchildren. The gift to the grandchildren, however, is a gift to them as a class, vesting immediately upon the death of the testator, subject only to open and let in other grandchildren who might thereafter be born: Hawkins on Wills, 72; Minnig v. Batdorff, 5 Pa. 503; Burk’s Estate, 21 Dist. R. 357. Consequently, Fannie Michener took a vested interest which passed to her personal representatives, who take an aliquot part in one-half of the rentals.

It will be noted that the will in terms only disposes of rental or income, so we forbear to express any opinion as to the remainder fee, pending the life of Edward: Ladner v. Siegel, 294 Pa. 368. In this view of the case the other questions propounded in the petition do not arise and we need not consider them.


author: Alessandkoni, J.,

text:
    Diamond National Bank of Pittsburgh v. Peck.

      Hirschwald, Goff & Davis, for plaintiff.

      Stradley, Ronon, SteveTis & Denby, for defendant.
    April 19, 1930.
   Alessandkoni, J.,

— The statement of claim set forth the following facts: The plaintiff is the holder of two notes in the sums of $10,000 and $5000, respectively, made by the Building and Industrial Construction Company, payable to the order of “ourselves” and endorsed Building and Industrial Construction Company, Lyman S. Peck, President, and Lyman S. Peck, both notes being dated Jan. 19, 1927, and payable sixty days after date. When presented for payment on March 2'lst they were not honored and were duly protested and notice sent to the defendant. Seventy-five hundred dollars was paid on account of both notes and the balance of $7500 forms the basis of plaintiff’s claim.

The defendant sets up two defenses to the action. It is first contended that the defendant is discharged from liability because the notes were due and payable on March 20, 1927, and were not presented until March 21, 1927. March 20, 1927, fell on Sunday, and under section 85 of the Act of May 16, 1901, P. L. 194, “when the day of maturity falls upon Sunday or a holiday, the instrument is payable on the next succeeding business day.” There is no validity to this defense.

The defendant sets up a second defense that the plaintiff on March 5, 1927, entered into an agreement of compromise and release with the Building and Industrial Construction Company and other creditors of the said corporation in which it was agreed that the creditors take “in full discharge of the several debts and claims due said creditors the sum of 50 cents on the dollar.” A supplemental agreement reaffirmed the terms of the original, and the conditions of the agreement having been fully complied with, defendant contends that he is discharged from liability, as no right of action was reserved against him by the plaintiff.

The plaintiff bases its rule for judgment on the contention that the defendant impliedly assented to the discharge of the construction company by signing the compromise agreement as president of the Building and' Industrial Construction Company, which, it is averred, precludes his discharge from liability.

Section 120 of the Negotiable Instruments Act in Pennsylvania provides, in sub-sections 5 and 6, that “a person secondarily liable on the instrument is discharged ... (5) by a release of the principal debtor, unless the holder’s right of recourse against the party secondarily liable is expressly reserved. (6) by any agreement binding upon the holder to extend the time of payment or to postpone the holder’s right to enforce the instrument, unless made with the assent of the party secondarily liable, or unless the right of recourse against such party is expressly reserved.” Under the language of subdivision 5, it is expressly stipulated that one secondarily liable on a negotiable instrument is discharged unless the right of recourse is expressly reserved. It is not contended that any express reservation was made, and, therefore, it would seem that the defendant is discharged.

In First National Bank of Hanover v. Delone, 254 Pa. 409, 420, the court considered the meaning of “express reservation of the right of recourse,” and said: “Before leaving this subject, we take occasion to say, while there may be some force in the appellant’s contention that, when an agreement to extend the time of payment is made with a person primarily liable, the words of the Act of 1901, supra,, require an ‘express’ reservation of recourse against one secondarily liable, yet, when the reasons for this statutory provision are understood, it becomes plain that courts should not be overly particular as to the precise phraseology of such a reservation, so long as it may reasonably be construed as complying with the requirements of the act, which merely announce a well established rule: See Crawford’s Annotated Negotiable Instruments Law (Pennsylvania edition), notes ‘d’ and ‘e,’ on pages 109 and 110; Hagey v. Hill, 75 Pa. 108; Manufacturers’ & Mechanics’ Bank v. Bank of Pennsylvania, 7 W. & S. 335, 341, 342.”

The court in National Bank v. Hanlon, 183 Mo. App. 243, decided that only an express reservation would preclude a discharge of an endorser when the principal debtor is released. In that case there was an express assent to the discharge of the maker’s liability. It appears also that by the law merchant in Pennsylvania an express reservation of the right of recourse was required: Hagey v. Hill, 75 Pa. 108. The court there quoted: “It was said, however, by Lord Chancellor Eldon, in Ex parte Glendenning, vide supra: ‘Ever since Mr. Richard Buck’s case, the law has been clearly settled, and is now perfectly understood, that unless the creditor reserves his remedies, he discharges the surety by compounding with the principal, and the reservation must be upon the face of the instrument by which the parties make the compromise; for evidence cannot be admitted to vary or explain the effect of the instrument.’ ”

The only case relied upon by the plaintiff which may be deemed in point is Arlington National Bank v. Bennett, 214 Mass. 352. In that case, however, there was an express reservation, although there was some dicta which might be construed as meaning that an implied assent to the discharge of the maker precluded the discharge of the endorser.

The rule for judgment might, however, be discharged on another ground. The plaintiff seeks to infer from the fact that the defendant signed a composition agreement as president on behalf of the Building and Industrial Construction Company that he thereby assented in his individual capacity to the discharge of the maker of the note. To our mind, this inference cannot be drawn. It is conceivable that the defendant was obligated to sign for the corporation of which he was president, and certainly the act of the corporation does not carry an implication that the agent by whom the act is consummated intends to bind himself in his separate and individual capacity by any adverse inference that may be deduced from his representative act.

And now, to wit, April 19, 1930, the rule for judgment for want of a sufficient affidavit of defense is discharged.


author: Sayers, P. J.,

text:
    Morris et al. v. Morris et al.

      O. R. Hughes, for petitioners.

      J. Ernest Isherwood, for Hal B. Church and Russell Roberts, guardian.
    Jan. 20, 1930.
   Sayers, P. J.,

— This is a proceeding under the Uniform Declaratory Judgments Act of June 18, 1923, P. L. 840, brought by Franklin Morris and Guy Morris, devisees and executors of the last will and testament of William H. Morris, deceased, to determine what interest, estate or title William H. Morris acquired under the last will and testament of Jacob Morris, his deceased father, in and to a certain house and lot of ground in Franklin Township, Greene County, Pennsylvania. All parties interested in said real estate, and in the construction of the wills of William H. Morris and Jacob Morris, and in this adjudication, to determine their rights, status and legal relations with reference thereto, have been made parties to this proceeding.

This proceeding to have a declaration of rights, status and other legal relations of the parties interested, all of whom are subject to the jurisdiction of the court as the record now stands, seems to be proper, and the remedy sought under this act is probably the most convenient and satisfactory one that exists at present for determining the matter in controversy. An action of ejectment might be a proper and convenient remedy, but, in the end, it would turn upon the construction of the paper writings or the two wills to be construed by the court under the submission in this case.

The court is of the opinion that the Uniform Declaratory Judgments Act can be made of real use in this case, and is satisfied that it has jurisdiction, and that an actual controversy exists between the parties, all of whom are sui juris or represented by a proper guardian, and before the court, and that the declaration sought will be a practical help in ending the controversy: Káriher’s Petition, 284 Pa. 455, 471.

There are some facts which do not clearly appear by the petition and answer, but generally the pertinent facts necessary to a proper adjudication of this'case appear by the petition and answer, and there is no request and apparently no necessity for trying any issues of fact by a jury.

The only answer filed in this ease is that of Hal B. Church, husband, and Russell Roberts, guardian ad litem of Jack Church and Sarah Jean Church, minor children of Nellie Morris Church, deceased, a daughter of William H. Morris, who was a son and devisee of Jacob Morris. This answer denies that William H. Morris had any more than a conditional or defeasible life estate in the house and lot devised to him by his father, Jacob Morris, and avers that when he, William H. Morris, ceased to occupy the property as directed by the will of Jacob Morris, he had no interest or estate in said house and lot thereafter, and that it then passed by the will of Jacob Morris to the children, grandchildren and heirs of William H. Morris in fee, and not to the devisees under his will, the petitioners herein.

The seventh paragraph of the will of Jacob Morris reads as follows:

“I will to my Son William H. Morris all of Certain House and lot of Ground Situated in Franklin township Greene County Pennsylvania adjoining lands of Jesse Orndoff and John Buchanan to have and to hold the Said House and lot of Ground So longe as occupied by him When my son William H. Morris Shall no longer ocupy the above described Property it Shal then belong to his Heirs.”

No other provision of the will could affect the construction of the above devise to William H. Morris except paragraph 3, which reads as follows:

“I Will that all my real and personal property Shall by my Executors be Sold.”

William H. Morris personally occupied the house and lot in controversy as soon as his father’s will was probated. About Feb. 1, 1928, he ceased to occupy the house and left the premises and went to live with Franklin Morris, one of the petitioners and devisees. Thereafter, William H. Morris rented the house and lot in controversy and exercised full and complete control and authority over the property from the time he ceased to occupy the house, Feb. 1, 1928, until he made his will of Jan. 14, 1928, devising said house and lot in fee to his sons, Franklin Morris and Guy Morris, as follows:

“1. In consideration of their taking care of me, I give, devise and bequeath to my two sons, namely Franklin Morris and Guy Morris to each the undivided one-half (i) thereof, all that certain house and lot of ground situate in Franklin Township, Greene County, Pennsylvania, on Ten Mile Creek, adjoining lands of Mollie B. Walton, E. E. Morris, Throckmorton Church Lot, and John Headley, containing 2 acres and 130 perches, to them, their heirs and assigns, in fee simple.”

He continued in possession of the premises after the making of his will and until the time of his death on Aug. 26, 1928, but he did not personally occupy or live in the house on the lot in controversy after he left the premises in February, 1928.

The second clause in the will of Jacob Morris, deceased, to wit, “I Will that all my real and personal property Shall by my Executors be Sold,” is absolutely repugnant to the later clause in the will devising the house and lot to William H. Morris so long as occupied by him. The rule that the latter of repugnant clauses in a will must prevail is so well established that authorities scarcely need be cited. “If two clauses in a will are absolutely repugnant, the latter must prevail even to the total exclusion of the first. But exclusion for repugnance is a principle of construction only to be invoked as a last resort after all efforts to reconcile and give harmonious meaning to both have failed:” Hart v. Stoyer, 164 Pa. 523, 527; Mutter's Estate, 38 Pa. 314.

The rule that the latter of incompatible clauses in a will must prevail is undoubted, but it is invoked only as a last resort where there is utter repugnancy: Simpson’s Estate, 245 Pa. 244, 252; Patton’s Estate, 268 Pa. 367, 369; Mayer’s Estate, 289 Pa. 407, 410. “Where there are two clauses in-a will which are so inconsistent with each other that it is impossible to give effect to both, the first must give way to the last:” Stickle’s Appeal, 29 Pa. 234, 236.

The petitioners in this case contend that where the devise is to a man and his heirs, there is and can be no intervening estate intended; and as the man has no heirs until his death, the first taker has a life or freehold estate. And that any limitation or condition as to occupancy could have no greater force than an expressed restriction or restraint as to alienation, citing the opinion of the court below, affirmed, per curiam, by the Supreme Court in Leonard v. Leister, 233 Pa. 475, 477. Petitioners claim that to occupy or not to occupy is one of the inherent attributes in a fee simple estate. The owner of the fee cannot be restricted in his right to use, occupy, alien or encumber as he thinks proper, and they claim that “where it is apparent from the words of a will that the dominant purpose of the testator is to devise a fee simple estate and the subsequent language indicates merely a subordinate intent to strip the estate thus given of one or more of its inherent attributes, the law will hold that this cannot be done; and the fee simple estate passes to the devisee with all its inherent qualities:” Pattin v. Scott, 270 Pa. 49; Walker v. Vincent, 19 Pa. 369, 371; Breinig v. Smith, 267 Pa. 207; Billmyer et al. v. Billmyer, 296 Pa. 31.

It is further claimed that the word “heirs” must be read in this will as a word of limitation (Martin et al. v. Grinage, 289 Pa. 473), and that the word “heirs” following the devise of a life estate in this case is a word of limitation and consequently that the intention of the testator is that the first devisee, even though named as a life tenant, takes as a source of inheritable succession: Lyman v. Lyman et al., 293 Pa. 490; Glenn v. Stewart, 265 Pa. 208.

Quoting from the opinion of Mr. Justice Walling in the latter case, the petitioners say: “The contention that the estate in James A. Glenn is reduced to one for life by the fact that the restriction upon alienation continues during his natural lifetime is not tenable. That simply attempts to reduce his power over the property, not his interest therein; while to cut down a fee previously given to an estate for life requires clear and unequivocal language. See Hoopes’s Estate, 231 Pa. 232; Kreb’s Estate, 184 Pa. 222; McIntyre v. McIntyre, 123 Pa. 329.”

Based upon this line of reasoning, the petitioners contend that William H. Morris took a freehold estate for life which was limited immediately to him and his heirs, and, consequently, under the rule in Shelley’s Case, he took a fee simple estate in the property in dispute which he had a right to devise and did devise in fee to the petitioners.

Where a will shows it was written by the testator himself, the language employed in particular instances, when not clear, should be given the meaning of testator, so far as this can be gathered from the writing as a whole, rather than a fixed technical meaning where the latter conflicts with the former: Smith’s Petition, 291 Pa. 129.

It will be observed that the testator, Jacob Morris, did not in the first instance devise a fee simple to his son, William H. Morris, which was cut down by any subsequent words of limitation, but that he did will to him the premises in dispute “to have and to hold the Said House and lot of Ground So longe as occupied by him.” This, as the court understands it, creates a conditional life estate which is defeated when the devisee fails personally to occupy the premises. The testator, however, went further in order to make his meaning more clear and said: “When my son William H. Morris Shall no longer ocupy the above described Property it Shal then belong to his Heirs.” If the testator had said at the end of this clause “it shall then belong to the persons who would be his heirs if he had died at that time,” there would have been no doubt as to the nature of the estate he intended William H. Morris to have.

The court has been unable to find any construction of a clause in a will similar to the one used by the testator in this case, but has found two Massachusetts decisions which hold that estates during occupancy are life estates.

Testator devised his widow an estate for life with a devise over to his daughter, Mary A. Bridges, should she survive her parents, “of the use and improvement of all my real estate and what household goods may remain, so long as she chooses personally to occupy and improve the same; on condition of her keeping the building in repair and paying the taxes and cost of insurance.” The court held “the interest given to his daughter Mary therein, though subject to be terminated by her ceasing to occupy, was a life estate:” Wilmarth v. Bridges, 113 Mass. 407, 410.

In Plympton v. Boston Dispensary, 106 Mass. 544, 548, where the devise to the widow was on conditions somewhat similar to those described in Wilmarth v. Bridges, the court held “Mrs. Dearborn [the widow] is not obliged to occupy the estate on Avon Place, but may do so at her discretion” on payment of certain rents, etc., and also held “so long as she occupies the house on Avon Place, she is tenant for life (Co. Lit. 42 a), and as such must pay the ordinary taxes on the house.”

The estate, however, granted to William H. Morris, while it was potentially a life estate if he had seen fit to comply with the directions of the testator as to occupancy of the house, was a life estate subject to a condition which happened in the instant case and which defeated and ended all estate or interest that William H. Morris thereafter could have in the land. The trouble with this ease is that the estate granted to William H. Morris in the first instance is not a freehold, but a conditional right of occupancy, an estate at will which ended when the devisee determined no longer to occupy the property.

Judge Endlich, in Schaeffer v. Messersmith, 10 Pa. C. C. Reps. 366, 369, after concluding that there was no distinction between a limitation and a condition in relation to a devise to a widow which became void upon her remarriage, says:

“Looking now at the effect upon the nature of the estate granted, it is manifest that the annexing of a condition to a devise cannot affect its nature as a devise of a fee or of less than a fee. Whatever the estate given, a breach of the condition annexed will confer a right of entry whereby the estate will be terminated. A provision operating by way of limitation, on the other hand, must necessarily reduce the estate to something less than a fee by fixing a period when it will terminate. Thus, a provision in restraint of marriage, operating by way of limitation, would end the interest devised, at the latest, at the widow’s death, but sooner in case of her remarriage. She would, therefore, take a life estate, because her interest might possibly last for life, while yet remaining liable to be determined sooner on the happening of the contingency of her remarriage: Rodgers v. Rodgers, 7 Watts, 15; Cooper v. Pogue, supra. A similar provision operating by way of condition would indicate nothing as to the estate granted, but simply make it, whatever it might be, determinable by entry upon remarriage.”

While we are well aware of the rule which generally requires the word “heirs” to be construed as a word of limitation, we feel, in order to carry out the testator’s intention, that he meant by the words “it shall then belong to his heirs,” that the persons to whom the estate was devised, subject to' the occupancy of William H. Morris, were the persons who would, if he were dead at that time, take as his heirs generally upon his failure to comply with the condition as to occupancy. The word “heirs” in this case was merely descriptive of the persons who were to take on failure of William H. Morris to occupy the house and lot and not a word of limitation of an estate previously granted in fee or in tail.

The court is, therefore, of the opinion that William H. Morris had but a conditional defeasible life estate in the disputed premises which failed when he ceased to occupy the house and lot of ground, and that he had no estate in the said house and lot which could be devised or transmitted by his will to the petitioners in this case, and that the premises in dispute and the right to immediate possession thereof belong to the persons who would have been the heirs of William H. Morris if he had died at the time of the breach of the condition which defeated his estate or interest in the lands in controversy.

At the time of the breach of the condition and failure to occupy the house and lot by William H. Morris, to wit, on Feb. 1, 1928, the persons who would he designated as his heirs if he had then died were Franklin Morris, a son; Guy Morris, a son; Nellie Morris Church, a daughter intermarried with Hal B. Church; Florence E. Morris, widow, and Fred A. Morris and Frank Edward Morris, sons of Milton H. Morris, deceased, who was a son of the said William H. Morris. Since that date, Nellie Morris Church has died testate, leaving to survive her her husband, Hal B. Church, and two children, Jack Church, a son, and Sarah Jean Church, a daughter, who have for their guardian ad litem Russell Roberts.

Adjudication.

And now, Jan. 20, 1930, the court finds as follows:

1. That William H. Morris, devisee of Jacob Morris, took no greater estate under the will of Jacob Morris than a conditional life estate, which was defeated by his failure to occupy the house and lot or property in dispute after Feb. 1, 1928.

2. That upon the breach of condition, namely, the failure of William H. Morris to occupy the house and lot or property in dispute after Feb. 1, 1928, it became the property and estate of those persons who would have taken as the heirs of William H. Morris if he had died intestate at that time.

3. That the persons who became the owners of the real estate with right of entry after Feb. 1, 1928, and who were thereupon entitled to possession of the premises, were Franklin Morris, who was entitled to the undivided one-fourth of the said property in fee; Guy Morris, who was entitled to the undivided one-fourth of the said property in fee; the devisees of Nellie Morris Church, who was entitled in her lifetime to the undivided one-fourth of the said premises; and Florence E. Morris, widow, and Fred A. Morris and Frank Edward Morris, sons of Milton H. Morris, deceased, who was entitled to one-fourth of the said property.

4. That William H. Morris had no estate in the land which he could transmit either by deed or will, and such estate as he had terminated when he failed to occupy the said house and lot of ground as directed in the paragraph of the will of Jacob Morris, in dispute in this case.

5. The costs in this case should be paid by the petitioners and the respondents herein, by each in proportion to the estate or interest which they have in the disputed premises.

Ordered, adjudged and decreed accordingly.

From S. M. Williamson. Waynesburg, Fa.


author: Hicks, J.,

text:
    Theopholis v. Glen Falls Indemnity Company.

      J. F. Mahoney, for plaintiff; R. R. Koch, for defendant.
    April 7, 1930.
   Hicks, J.,

— This was an action to recover on an automobile insurance contract, issued by the defendant to the plaintiff, and covering his 6-eylinder Riekenbaeker sedan, which was totally destroyed in an accidental collision on July 1, 1928. The only issue of fact at the trial was the market or cash value of the automobile at the time the loss occurred, taking into consideration depreciation which had taken place as a result of usage, price reduction and other like conditions on the date of its destruction.

Three witnesses were called by the plaintiff to testify as to the market or cash value at the time of the loss, taking into consideration depreciation, price reduction and other like conditions, and they gave their opinions of $1500 as such value. No complaint of this is made by the defendant. It called an expert in its own behalf, who stated the value to be, in his opinion, $350. Later, the court struck out this testimony on motion, and this action, together with another ruling on evidence — later to be noted — forms the two reasons urged by the defendant in its written argument in support of its motion for a new trial; the other reasons being abandoned.

Ray Thornburg was called by the defendant as an expert witness. He had not seen this car until after the collision in which it was totally destroyed when he inspected the wreck for the defendant. After the expert had duly qualified as such, he was asked a hypothetical question: “Q. It has been testified here, by witnesses called by the plaintiff, that this car was in excellent, or first class, condition immediately prior, to the accident; that it had run about 20,000 miles; that it was bought new in May, 1926; that the accident happened on July 1, 1928. It has also been testified that at the time of this accident the Rickenbacker car had gone out of manufacture. From your experience, and basing your conclusions and your opinion upon the facts as given to you, what was the fair market or cash value of that automobile at the time the loss occurred, taking into consideration depreciation which had taken place as a result of usage, price reduction and other like conditions, upon the date of July 1, 1928? A. About $350.” Up to this point there was no valid objection to either the question or the answer. The situation was wholly altered, however, by the cross-examination of the witness.

In the course of the examination, the following questions and answers appear: “Q. How do you fix the value of $350 as the actual value of this car prior to the accident? A. We just take the Blue Book value of it. Q. Is that what you are taking? A. Not now, no. The Blue Book value was about that at that time. Q. Is the estimate that you have given here, of $350, based on figures that you get from some book or is it based upon the knowledge that you acquired as an automobile dealer? A. Based upon the market value of the automobile at the time the appraisal was made. Q. Where did you get the figures from? A. We first get the figures from the Blue Book [interrupted at this point by plaintiff’s counsel with request to strike out the testimony]. By the Court: Q. Now, do I understand you to say that you base the value now upon the figures that you obtain from the Blue Book? A. We do not base the absolute value of the car on the Blue Book; we take the Blue Book value as a start for arriving at the market value of the automobile. [At this point, request to strike out testimony was repeated.] By the Court: Q. And what else did you use then? A. And the matter of the fact that the automobile was out of existence, which made the depreciation of the car so much greater than a car that is under construction at the time. Q. Did you take anything else into consideration? A. No, I did not. Q. So that the only two things that you took into consideration were, first, the Blue Book value; and, secondly, the fact that the car was obsolete. A. Right. Q. And those are the only two factors? A. That is all.” The court then granted the request to strike out the testimony. This action of the court is urged by the defendant as error.

The expert was an automobile dealer of twenty years’ experience; he was acquainted with market prices in this vicinity at the time of the accident and with new and used Rickenbacker ear values during the time he was in business. As an expert, who had not seen the car before the accident, he was called to express his opinion as to the market value of this car based upon a hypothetical question including facts which the evidence tended to establish. Upon these facts, interpreted by his special experience, he was to give his opinion as to value and not upon facts not stated to him, such as the contents of the Blue Book. He ignored every assumed fact in the hypothetical question, except obsolescence, such as condition, age, usage, and upon facts not in evidence rendered his opinion. Being called as an expert to render his opinion upon a hypothetical question, and not upon his personal knowledge of the facts, his testimony had to be based on an assumption of the truth of certain facts hypothetically stated: 22 Corpus Juris, § 733, page 639'. This principle was recognized by counsel for the defendant when he stated the hypothetical question. After stating the facts in evidence, he continued: “From your experience, and basing your conclusions and your opinion upon the facts as given to you,” what was the fair market value, etc.?

The witness frankly told the court that his opinion was based alone on two facts, only one of which was in evidence, to wit, obsolescence — not being manufactured any more — and Blue Book value. An answer based partly on facts, gleaned apart from the trial and not included in the question, should be stricken out: 22 Corpus Juris, § 810, page 721; Com. v. Hazlett, 16 Pa. Superior Ct. 534, 552; 11 Ruling Case Law, § 10, page 578. And the reason is that the jury would have no possible way to determine what weight should be given to the opinion.

A situation quite similar to this arose in the recent case of Pietro v. P. R. T. Co., 298 Pa. 423 (1930), upon the cross-examination of a medical expert, which fact does not alter the principle involved, since the rules governing experts and their opinions based on hypothetical questions are identical. In the syllabus appears the following: “An expert witness may express an opinion on a state of facts which is set forth in a hypothetical question and assumed to be true, but not from those and other facts which are unstated or not assumed to be true. The opinion expressed by an expert witness should be stricken off if it appears by his cross-examination that it is based on matters other than those expressed in the hypothetical question upon which he gave the opinion, unless the question is so reworded as to embrace all the facts upon which his opinion is based.” In the cited case, the lower court overruled the motion to strike out the previously expressed expert opinion. In holding this to be error, the Supreme Court (pages 428, 429) said: “This was clear error, for, under the facts as they then appeared, the opinion of the witness was partially based on unstated things said to him by plaintiff’s family and others found in the brief of plaintiff’s counsel. Under such circumstances, there was no possible way for the jury to determine what weight should be given to the opinion. Had it been shown that the statements made by the family and those appearing in the brief had been testified to at the trial and were assumed to be true when expressing the opinion, the jury would have been able to form an intelligent judgment regarding it, for the question would then have included all the facts on which the opinion was based; or had the witness later stated that his opinion would have been the same, even with those extraneous facts eliminated, the giving weight to them in rendering the expressed opinion would have been cured; but neither of these courses was pursued. In view of this, the error below is clearly pointed out in Howarth v. Adams Express Co., 269 Pa. 280, in which we said at page 283: ‘An expert may express an opinion on an assumed state of facts which the evidence tends to establish, but not on what some one told him, nor on what he learned from another doctor, nor from the history of the ease, we know not what, nor by whom communicated. An opinion based on such a question would naturally be misleading. The answer is also bad, for it does not show what had been given the witness as the history of the case, nor assume the truth of the evidence to which he had listened. See Becker v. Phila. R. T. Co., 245 Pa. 462; Yardley v. Cuthbertson, 108 Pa. 395; McDyer v. Eastern Pa. Rys. Co., 227 Pa. 641. In such case, an expert opinion cannot be based upon the facts not before the jury, Rogers on Expert Testimony (2nd ed., page 82); nor upon hearsay: Lawson on Expert and Opinion Evidence (2nd ed., page 266).’ ”

Another recent case is that of Scott et ux. v. Lindgren, 97 Pa. Superior Ct. 483, 487, where the court said: “Another witness who had never seen the car said he was ‘familiar with this type,’ and that there was ‘a recognized standard of value of such car on the market that is generally accepted by the trade.’ He was then asked whether he could ‘tell . . . what was the fair market value on a 48-8 touring limousine Locomobile as of Feb. 1, 1928’ (the date of the collision), and to this question the court sustained an objection. He was then asked to state the ‘value of a 1924 model 48-8 touring limousine as given by the Red Book Authorities as of Feb. 1, 1928, and objection was again sustained. The record gives no information concerning ‘Red Book Authorities.’ There is nothing to indicate that plaintiff’s car was of the market value so suggested, if the value had been stated; nor did defendant make any offer to prove what was the market value before collision.”

The vice then of the expert’s opinion is quite apparent, in that he based it, not upon the facts in evidence and stated in the hypothetical question, but he partially based it on facts or values in a Blue Book, not in evidence, and, therefore, precluded the jury from forming an intelligent judgment because not all the facts on which the opinion was based were before them: Pietro v. Phila. R. T. Co., supra.

After the evidence of the expert was stricken out, the defendant re-examined the expert in an effort to have the court change its ruling. In this examination it appeared that the Blue Book figures are put out by the automobile exchanges as the basic trade-in or market value prices for given cars at a given time; that in ascertaining market value, as a starter, the expert goes to the Blue Book and when a car is brought in to sell, the dealer is not governed by the Blue Book. But there was no evidence that the plaintiff’s car was similar to or of the value of the “given cars” in the said book, or whether the “given time” was the time of the destruction of the plaintiff’s car; and “basic trade-in or market value” was not the issue — certainly trade-in value [necessarily relating to the dealing of dealers in making sales and taking a car in part payment] is not market value. The market value of a second-hand car is such a sum as it will bring when offered to a person who is in the market for a second-hand ear and who is willing to pay its just and full value. So many elements enter into it in a case of a second-hand car — such as care, condition, kind and length of use, age, mileage, and also in this case, the fact that it was no longer being manufactured. All these factors were suggested to the expert as the basis of his opinion and he repudiated all but the latter. This he could not do, as we have seen. He had not seen the car before the accident and was called upon to express an opinion on facts stated in a hypothetical question, and could not base his opinion on anything else. His competency as an expert was ruled favorably to him. And that the Blue Book values were unsafe he admitted when he testified that when a car is brought in to sell, “you are not governed by the Blue Book.” Yet he used it with the factor of obsolescence as the basis of his opinion as to the market value of plaintiff’s ear.

The defendant urges that a witness may testify to the value of property if his knowledge of it has been derived through the general sources of information to which the ordinary business man resorts to inform himself as to values for the proper conduct of his affairs, and cites Chamberlayne, Handbook on Evidence, § 744. But this goes to his qualification as a skilled or expert witness. His acquaintance with special and generally accepted sources of information, coupled with experience in that particular line, makes him competent, but although qualified and a hypothetical question is addressed to him, he must base his opinion on the facts as stated to him. There is a difference between the data constituting an expert’s qualifications and resultant competency, and the facts forming the basis of his opinion.

The defendant cites the case of Struse v. Phila. R. T. Co., 87 Pa. Superior Ct. 46, 49, as a similar case. In the syllabus appears the following: “A duly qualified expert, who had seen the truck before the accident and had inspected it at the time it came into the shop after the accident, is competent to testify as to the depreciation of its value when other evidence as to its condition prior to the accident had been produced.” The real question in that case was the competency of the witness on depreciation, as appears from the following (pages 48 and 49) : “The admission of the testimony of a witness who testified to the depreciation of the value of the truck presents a more serious question, but after careful consideration we conclude there was no error in the action of the court in allowing the testimony to go in. The witness formerly had been the manager of the used truck department of a large truck company, and his duties had been to appraise trucks which were to be traded in after they were returned for repairs. He had supervised the repairs and also sold trucks. He saw the truck involved in this accident before the time it was injured, and saw it in the shop several times previous to the accident. He did not make any particular examination of it — had not opened the hood and looked inside. It was a mere casual looking at the truck. It appeared on the trial of the case in the testimony of another witness that the truck was in good running order immediately prior to the accident. The expert testified by the inspection he made of the truck at the time it came into the shop after the accident that he had a knowledge of the degree of care or character of usage the truck had prior to the accident. The style and age of the truck had been stated. The witness knew the extent and details of the repairs. He had intimate knowledge of the work and methods employed in the shop. With all these facts, we think an expert could visualize or make a mental picture of the car after it was repaired so as to give a fair estimation of the depreciation.”

We held Mr. Thornburg was competent because of his years of experience and special knowledge, even though he had never seen the car before the accident. The condition of the car had appeared in evidence, as did its age, use and the fact that it was no longer being manufactured. He knew its wrecked condition. And based upon these facts in evidence and stated in the hypo-, thetieal question, we permitted him to give his opinion of value, as in Struse v. P. R. T. Co., supra, and Pietro v. P. R. T. Co., supra; Wilhelm v. Uttenweiler, 271 Pa. 451, 455. But when he later repudiated these facts in evidence and substituted, as the partial basis of his opinion, facts not in evidence, we struck it out (Pietro v. P. R. T. Co., supra, 428), as his opinion was incompetent, but his competency as an expert still remained. Had he later corrected his cross-examination and based his opinion upon facts in evidence and included in the hypothetical question, we would have changed our ruling and left the weight of his testimony to the jury. At it was, the jury in no possible way could determine what weight should be given to his opinion: Pietro v. P. R. T. Co., supra, 428, 429.

The only other error complained of was the action of the court in refusing to permit the defendant, on cross-examination, to ask the plaintiff when the Rickenbacker automobile factory went out of business. If this was error, on page 10 of the testimony, it was amply corrected later. The fact that the Rickenbacker car was no longer manufactured and was not made on the date of the accident was introduced in evidence when every witness on both sides of the case, except the plaintiff himself, was examined, as appears by the testimony on pages 24, 25, 31, 32, 35, 46, 47, 48, 50 and 54. The defendant, therefore, could not have been injured.

The motion for a new trial is overruled and judgment is hereby directed to be entered sur verdict in favor of the plaintiff and against the defendant upon payment of the jury fee.

Prom M. M. Burke, Shenandoah, Pa.