In the matter of the estate of Andrew C. tion in satisfying itself whether the claim is Brown. Petition by Rome G. Brown for fairly disputable. The allowance of the apleave to enter in the county court an appeal peal being a matter of discretion, the scope from a decision of the commissioners allowing of the inquiry cannot well be limited by techa claim in favor of the estate of Lucia G. nical rules. If the evidence offered to meet Brown. The petition was denied, and the the petitioner's claim that the case is fairly petitioner excepted. Exceptions overruled. disputable goes beyond the requirement Argued before POWERS, C. J., and MUN- and shows that the petitioner has no defense, SON, WATSON, HASELTON, and TAYLOR, this cannot be charged as error. The only JJ. evidence presented in support of the petition was the affidavit of Mr. Shurtleff, and his er. H. C. Shurtleff, of Montpelier, for petition- tionee. take. MUNSON, J. This is a petition for leave to enter in the county court an appeal from a decision of the commissioners on the estate of Andrew C. Brown allowing a claim in favor of the estate of Lucia G. Brown, on the ground that the petitioner was prevented from taking an appeal by accident or misThe petitioner is Rome G. Brown, a son of the decedent, residing in Minnesota; and he employed Mr. H. C. Shurtleff to contest the claim and take an appeal in case of an allowance. Mr. Shurtleff arranged with one of the commissioners to inform him when the report was filed, but the commissioner forgot to do so, and Mr. Shurtleff did not learn of the filing until after the time for taking an appeal had expired. The petition is sworn to, and contains an averment that the petitioner believes the claim to be an unjust one. The petitioner was not present at the hearing. testimony was only in proof of the accident which prevented the appeal. If the petitioner had any standing in court, it was by virtue of the allegation that he believed that the claim allowed was an unjust claim, and, if this was treated as sufficient evidence that he believed that he had a good defense and intended to make it, the evidence received under exception was pertinent to the issue. [2] The petitioner also claims error in that the court proceeded upon the theory that the uncontradicted allegations of the petition, made on oath and of the petitioner's personal knowledge, were not evidence. The statement in the findings that it did not appear, except from what is stated in the petition, whether the petitioner believed the claim to be just or unjust does not necessarily imply that the court gave the allegation of the petition no effect; and error will not be presumed. We think it cannot be said that the action of the court, either in receiving the evidence excepted to or in rendering the judgment it did, was an abuse of discretion. Judgment affirmed. (243 Pa. 116) CARLISLE v. CARLISLE et al. AFORESAID." Jan. 5, Joseph G. Brown, another son of Andrew C., was administrator of Lucia G.'s estate, and the claim allowed her estate was for the proceeds of a mortgage which Joseph claimed his father received. From evidence received against the petitioner's exception, the county court found that Rome G. Brown appealed from the allowance of his father's 1. WILLS (§ 634*)-CONSTRUCTION "ISSUE AS will; that, while this appeal was pending, there was some controversy between the brothers as to whether Joseph or his father had the proceeds of the mortgage; that the will contest was finally settled; and that, in connection with this, an understanding was had regarding the mortgage, in pursuance of which Joseph afterwards showed Rome some vouchers, and the matter was settled. [1] The petitioner claims that the court erred in trying and determining the merits of the main case in this proceeding, and supports his claim by referring to Farmers', etc., Ins. Co. v. Reynolds, 52 Vt. 405, where it is said: "In the trial of a petition of this kind, the court will not undertake to pass upon the merits of the defense, but should look far enough to be satisfied that the case is fairly disputable, and that the defendant in good faith intends to make a defense." We think the language of the first clause of the sentence quoted is not to be taken as a restriction upon the exercise of the court's discre Under a will bequeathing testator's farm to his son for life, and providing that, "if he should have children living at his death, then I. devise the same to them, but if he should die without issue as aforesaid, then I devise the same to my said grandson," the estate vested in the grandson upon the son's dying without issue; the words "issue as aforesaid" meaning "children living at his death." [Ed. Note. For other cases, see Wills, Cent. Dig. §§ 1488-1510; Dec. Dig. § 634.*] 2. WILLS (8_545*)-CONSTRUCTION-"IN DEFAULT OF SUCH ISSUE." The words "in default of such issue," following an express devise to any particular branch of issue, as children, sons, or daughters, will be construed to refer to the issue before described. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1171-1176, 1310-1318; Dec. Dig. § 545.* For other definitions, see Words and Phrases, vol. 4, p. 3471.] 3. WILLS (§ 545*)-CONSTRUCTION. out the word "such," following a devise to chilWords importing a failure of issue, withdren in fee simple or fee tail, refer to the ob ject of that prior devise and not to issue at large. [Ed. Note. For other cases, see Wills, Cent. Dig. §§ 1171-1176, 1310–1318; Dec. Dig. § 545.*] Appeal from Court of Common Pleas, Washington County. Amicable ejectment by Joseph Edgar Carlisle against Ella J. Carlisle and another. From a judgment for defendants, plaintiff appeals. Reversed. Argued before FELL, C. J., and BROWN, MESTREZAT, ELKIN, and MOSCHZISKER, JJ. T. M. Gealey, of Pittsburgh, and W. A. H. McIlvaine, Harry L. Williams, and John R. McCreight, all of Washington, Pa., for appellant. James I. Brownson and J. M. Dickson, both of Washington, Pa., for appellees. BROWN, J. Joseph Carlisle, at the time of his death-September 17, 1898-was the owner of the farm involved in this amicable action of ejectment. The present title to it depends upon the proper construction of the following clause in his will: "Third. I give and devise to my son Newton Carlisle, the farm he now lives on, for and during his life, to use and occupy as his own, and if he should have children living at his death, then I devise the same to them, but if he should die without issue as aforesaid, then I devise the same to my said grandson Joseph Edgar Carlisle." Newton Carlisle, who never had any children, died July 17, 1912, leaving a will, by which he gave his entire estate to his wife, Ella J. Carlisle, one of the appellees. More than two years before his death he had executed a deed for an undivided third interest in the farm to J. M. Dickson, one of the defendants in this action brought by Joseph Edgar Carlisle, claiming title as the devisee of his grandfather. [1] In determining whether Joseph Carlisle gave an estate in fee tail to his son Newton, which became a fee simple under the act of 1855 (P. L. 368), our first inquiry is, What was the testator's intention? It could not have been more clearly expressed that the son's estate was to be limited to his life, with a devise over to his "children living at his death." If nothing followed these words, it could not be questioned that the word "children" should be given its primary meaning, and that children of the son Newton living at the time of his death would have taken as purchasers by devise directly from their grandfather. But it is contended that, in view of the words immediately following -"but if he should die without issue as aforesaid" the testator intended to use the word "children" in the sense of issue or heirs of the body, and that the devise to the son, therefore, became a fee simple under the act of 1855 and the application of the rule in Shelley's Case. This contention was sustained by the court below, the learned presi dent judge who spoke for it being of opinion that when the testator used the word "issue" he intended to define the meaning to be given to the preceding word "children." In this we are unable to concur. On the contrary, we are clear that the testator intended the word "issue" to mean "children living" at the time of his son's death. The words are not "if he should die without issue," but "if he should die without issue aforesaid." The "issue aforesaid" are "children living" at the time of the son's death, and the unmistakable intention of the testator in using the words "issue as aforesaid" was to again refer to those children. No other intention can be imputed to him, and the words "issue as aforesaid" must be construed as meaning the children to whom the testator referred. and as therefore importing a definite failure of issue. [2, 3] "Mr. Jarman, in his valuable treatise on Wills, after referring to a number of authorities establishing the settled rule of construction to be that the words 'in default of such issue,' following an express devise to any particular branch of issue, as children, sons or daughters, will be construed to refer to the issue before described, adds: 'It is well settled also that words importing a failure of issue (without the word such). following a devise to children in fee simple or fee tail, refer to the objects of that prior devise and not to issue at large.' 2 Jarman, 372. The cases to which he refers fully support his position." Sharswood, J., in Daley v. Koons, 90 Pa. 246. Among other of our own cases announcing the same rule there may be cited Sheets' Estate, 52 Pa. 257, and Chambers v. Union Trust Co., 235 Pa. 610, 84 Atl. 512. The devise of the farm was to the sou Newton for life, with remainder to his children, if he should leave any living, not, however, to them by devolution or descent from him, but by devise directly from the testator; and, if the son should leave no living children, the devise of the remainder was directly from the testator to his grandson Joseph Edgar. The fee is in him. Kemp v. Reinhard, 228 Pa. 143, 77 Atl. 436, 29 L. R. A. (N. S.) 958. The assignments of error are sustained, the judgment is reversed, and is here entered for the plaintiff below. (243 Pa. 167) LAPSLEY v. PITTSBURGH RYS. CO. (Supreme Court of Pennsylvania. Jan. 5, 1914.) 1. STREET RAILROADS (§ 117*)-FRIGHTENING HORSE-QUESTION FOR JURY EVIDENCE. Where, in an action for injuries from a horse being frightened, the inference could fairly be drawn from the evidence that the motorman of an approaching car might have observed that the fright of the horse from a standing ash car was aggravated by the car's approach and the ringing of the gong, the court properly submitted to the jury the question of the motorman's negligent failure to guard against further frightening the horse and causing injury to plaintiff. "The plaintiff claims that his horse took fright because of the approach of the street car on the viaduct, and in part also by the [Ed. Note.-For other cases, see Street Rail-ringing of a gong upon the street car. The roads, Cent. Dig. §§ 239-257; Dec. Dig. 8 horse ran away and threw out plaintiff and 117.*] his brother, inflicting personal injuries. The summer car did not strike or collide with the vehicle in which plaintiff was riding. defense was that, so far as the summer car is concerned, it was approaching at a proper rate of speed, and that there was no negli 2. STREET RAILROADS (§ 87*)-FRIGHTENING OF HORSE-NEGLIGENCE. While it is a motorman's duty to ring his gong with emphasis on proper occasions, it may be negligence to ring it violently and unnecessarily in proximity to a frightened horse, whose condition is manifest. The [Ed. Note.-For other cases, see Street Rail-gence in the manner of its operation, either roads, Cent. Dig. §§ 181, 182; Dec. Dig. § 87.*] Appeal from Court of Common Pleas, Allegheny County. Trespass by A. E. Lapsley against the Pittsburgh Railways Company to recover damages for personal injuries. From judgment for plaintiff, defendant appeals. Affirmed. as regards speed or in the ringing of the bell. So far as the ash car is concerned, the defense was that the ash car was a proper appliance, and was being used for a proper purpose and in a proper way." Upon the trial, a request for binding instructions in favor of the defendant was refused, and the questions of negligence and contributory negligence were submitted to the jury, who found a verdict of $2,500 in fa Argued before FELL, C. J., and MESTREZAT, POTTER, STEWART, and MOSCH-vor of plaintiff. Motions for a new trial and ZISKER, JJ. William A. Challener and Clarence Burleigh, both of Pittsburgh, for appellant. Rody P. Marshall, of Pittsburgh, for appellee. for judgment in favor of defendant, notwithstanding the verdict, were refused, and judgment was entered on the verdict. Defendant has appealed, and the single question raised is whether there was sufficient evi dence of negligence to justify its submission to the jury. [1] The trial judge instructed the jury that there was not sufficient evidence to show POTTER, J. In this action, the plaintiff sought to recover damages for personal injuries alleged to have resulted from the negligence of the defendant. The accident upon which the claim is based occurred on the that the motorman ran the car down the afternoon of August 30, 1909, upon a bridge viaduct at an extraordinary rate of speed. which extends across the Monongahela river He also charged that the defendant company from McKeesport to Dravosburg. Plaintiff had the right to run the ash car to the place in which it stood at the time of the accident, and his brother, seated in a one horse vehicle, were driving across the bridge in a and that the evidence did not show that it southerly direction towards Dravosburg. The was left there an unreasonable time. The circumstances of the accident and the conten- trial judge did, however, after fairly setting tions of the parties are well stated in appel-out the testimony of the plaintiff and the lant's history of the case, as follows: "Where the south approach of the bridge begins to descend, a viaduct of the defendant company turns away from the bridge and towards the left or up-river side. Near this intersection there is a waiting room, also on the upriver side of both structures. Two street railway tracks are laid along the bridge and continue down the bridge approach by a descending grade in a straight line. Two other street railway tracks follow the line of the viaduct on a rising grade. Just beyond the intersection of these tracks, practically opposite the waiting room, an ash car be- After a very careful consideration of the longing to the defendant company stood on testimony, we are led to the conclusion that the inbound bridge track, waiting its turn the trial judge was justified in leaving the to switch onto the viaduct tracks. The question of defendant's negligence to the plaintiff and his brother approached the ash jury. The situation was unusual; it was car, and the horse gave some signs of fright. upon a bridge, in a narrow roadway, with The plaintiff pulled to his left to pass by the comparatively little space for the horse to ash car, and was either passing or had actu- pass. We cannot say but that, from the evially passed the ash car, when an open or dence of the plaintiff, an inference could fairsummer street car came down the viaduct only have been drawn by the jury that the mothe outbound viaduct track for the purpose torman might have observed the fright of the of getting onto the bridge. horse, aggravated by the approach of the car defendant, which was contradictory as to this point, submit to the jury the question whether it was negligence in the motorman, if he did do what he was charged with doing in the testimony of the plaintiff, that is, come down the viaduct rapidly, ringing his gong, when he saw, or could have seen, that plaintiff's horse was shying and excited; and that he further disregarded the warning given by plaintiff's brother when the latter threw up his hand, notwithstanding which, the motorman continued to approach and to ring his gong. and the ringing of the gong, with the likeli- | tween the plaintiff and one of the defendants, hood of the horse becoming uncontrollable, to dissolved and a receiver appointed to wind the great peril of the driver and the person up its affairs and for an accounting. The with him. If these were the conditions, with case was considered with care by the learned the car close at hand, it was hardly the part judge of the common pleas, and the bill was of reasonable prudence to keep the car in dismissed on his finding that a partnership motion, and to continue a loud clanging of did not exist. Our examination of the testithe gong. Yet this is what the motorman mony leaves no doubt of the correctness of did, if the testimony of the plaintiff and his the conclusion reached. But if a doubt exbrother is to be accepted as true. isted it would not be ground for a reversal of the decree. Nothing but clear error will warrant the setting aside of findings of fact by a chancellor. What was said in the recent case of Eppsteiner v. Isman, 239 Pa. 393. 86 Atl. 878, "The findings of fact by a judge, which involve the credibility of witnesses and the weight to be given their testimony, will be given the effect of a verdict of a jury and they will not be disturbed where there is testimony to support them," was a repetition of what before had been repeatedly said on the same subject. [2] While it is unquestionably the duty of the motorman to ring his gong with emphasis upon proper occasions, yet it may be negligence to ring it violently and unnecessarily in proximity to a frightened horse, whose condition is manifest. Ordinary prudence should be exercised by the motorman under such circumstances. Of course the testimony for the defendant tended to show an entirely different situation. It was to the effect that the horse frightened at the ash car, which was standing still, and that the passenger car had also stopped, and was started again in the usual quiet way, with perhaps a single tap of the gong, and that the mere sight of the car proceeding in the ordinary way, caused the horse to shy and become unmanageable. If this was the case, the plaintiff had no right to recover, and the jury were so instructed. But, upon the testimony of the plaintiff, the case was not sufficiently clear, we think, to have justified the court below in saying, as matter of law, that there could be no recovery. The decree is affirmed, at the cost of the appellant. (242 Pa. 458) FRIDAY et al. v. LIEBENDORFER. (Supreme Court of Pennsylvania. Nov. 7, 1913.) EJECTMENT (§ 90*)-EVIDENCE-DEEDS. Testatrix, holding certain lands, left surviving husband and five children. The husband married a second wife and with her conveyed the land to defendant's grantor. After the death of the husband the two surviving children The assignments of error are dismissed, brought ejectment for the land, taking title unand the judgment is affirmed. (243 Pa. 165) CRUZAN v. CRUZAN et al. (Supreme Court of Pennsylvania. Jan. 5. 1914.) APPEAL AND ERROR (§ 1010*)-FINDINGS OF FACT-TESTIMONY. A finding of the trial judge, in a suit for the dissolution of a partnership and an accounting, that the partnership did not exist will not be disturbed on appeal, in the absence of clear error, when supported by sufficient testimony. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3979-3982, 4024; Dec. Dig. § 1010.*] Appeal from Court of Common Pleas, Allegheny County. Bill in equity by Samuel Cruzan against Elmer E. Cruzan and others, for dissolution of partnership, appointment of receiver, and accounting. From decree dismissing bill, plaintiff appeals. Affirmed. Argued before FELL, C. J., and MESTREZAT, POTTER, STEWART, and MOSCHZISKER, JJ. William Strite McDowell and Patterson, Sterrett & Acheson, all of Pittsburgh, for appellant. C. L. Kerr, of Pittsburgh, for appellees. der the intestate laws. Some seven months after action brought, 50 years after the death of testatrix, a paper purporting to be her will was admitted to probate. There was no evidence that the husband ever knew of the will. The two executors named in the will were witnesses to the husband's deed. The will gave the husband the use of the land while unmarried, and on his marriage or death the land was to be sold by the executors and the proceeds divided among the children. Held, in ejectment, that deed from the husband was properly excluded when offered to show title by defendants. [Ed. Note. For other cases, see Ejectment, Cent. Dig. §§ 254-277; Dec. Dig. § 90.*] Appeal from Court of Common Pleas, Lawrence County. Ejectment by William Friday and others against David M. Liebendorfer. From judgment for plaintiffs, defendant appeals. Affirmed. Argued before BROWN, MESTREZAT, POTTER, STEWART, and MOSCHZISKER, JJ. J. M. Martin and E. N. Baer, both of New Castle, for appellant. J. Norman Martin and Norman A. Martin, both of New Castle, for appellees. PER CURIAM. Rosanna Friday died March 31, 1860, seised of the land in controPER CURIAM. The bill in this case was versy. She left to survive her a husband, to have a partnership, alleged to exist be- Lewis Friday, and five children. Two of first wife's estate, and that interest could only have been a tenancy by the curtesy. That estate ceased upon his death, and the right of possession of the land then vested in the plaintiffs. The judgment on the verdict directed for them must therefore be affirmed. Judgment affirmed. (243 Pa. 141) RICE et al. v. BRADEN et al. (Supreme Court of Pennsylvania. Jan. 5, 1914.) EQUITY (§ 239*)-DEMURRER TO BILL-EF FECT AS ADMISSION. On demurrer to a bill in equity, all facts properly pleaded in the bill must be taken as true. Dig. § 494; Dec. Dig. § 239.*] 2. TRUSTS (§ 95*)-"TRUSTEE EX MALEFICIO" A person who has secured the property of another by fraud, is a "trustee ex maleficio" of the person defrauded. [Ed. Note.-For other cases, see Trusts, Cent. Dig. §8 145-147; Dec. Dig. § 95.* For other definitions, see Words and Phrases, vol. 8, p. 7134.] 3. PLEADING (§ 8*) BILL IN EQUITY - AL LEGING FACTS OR CONCLUSIONS. act A bill in equity to declare a trust ex maleficio in property fraudulently procured is demurrable, where it avers merely the legal conclusion that an was fraudulent without clearly stating the facts constituting the fraud. Cent. Dig. 88 12-282, 68; Dec. Dig. § 8.*] [Ed. Note.-For other cases, see Pleading, them died intestate, unmarried, and without then felt that he still had an interest in his issue. Two still survive, and they, together with the two children of a deceased daughter, are the plaintiffs in this ejectment, claiming title to the land under the intestate laws. Under this title they claimed the right of possession upon the death of Lewis Friday, which occurred July 25, 1909, and the court below, having been of opinion that he had been a tenant by the curtesy, directed a verdict for the plaintiffs. Against their title an unavailing defense was set up. Lewis Friday, the husband of Rosanna, married a second time, and he and his wife, by a deed dated March 23, 1868, conveyed the land in 1. dispute to Edward Lacey, who devised it to his wife, and she, as his devisee, conveyed it to David Liebendorfer, the defendant below, on October 3, 1882. On November 4, 1910, more than seven months after this action was brought and more than 50 years after the death of Rosanna Friday, a paper purporting to be her will was admitted to probate as such. She directed that her husband should have the use of her real estate as long as he remained unmarried, and that upon his remarriage or death the property should be sold by her executors and the proceeds divided among her children. She named as her executors William and John Glasser, her two brothers. In the deed from Friday to Lacey these two men are not named as grantors, nor do their names appear anywhere in the body of the deed. Lewis Friday and wife are the sole parties of the first part, but beneath their signatures as grantors there appear the names of the two Glassers, neither of whom, however, joined in the acknowl-4. edgment, which was made by Friday and his wife alone. On the trial the deed from Friday to Lacey was offered in evidence for the purpose of showing title in Lacey from Friday and the executors of his wife's will. This offer was properly disallowed. Though the Glassers wrote their names beneath those of Friday and his wife, there was no recital in the deed of the capacity in which they had signed it, nor was there any evidence that they had ever undertaken in any manner to act as executors of their sister's will during the more than 50 years that intervened between her death and the admission of it to probate. The deed, therefore, passed nothing to Lacey from them as executors, and he took nothing under it except the interest of Friday, which was but a life estate as tenant by the curtesy, for there was no evidence that he ever took under his wife's will, or that he ever knew there was such a will. Even if he had known of its existence, it is hardly likely that he would have taken in lieu of his tenancy by the curtesy an estate which was to cease upon his remarriage. If he had taken under his wife's will he would have had no interest in her estate [Ed. Note. For other cases, see Descent and to convey to Lacey in 1868, for at that time Distribution, Cent. Dig. §§ 221, 222; Dec. Dig. he had remarried. He surely must havel§ 72.*] EXECUTORS AND ADMINISTRATORS (§ 315*)—- A decree of distribution made by an orphans' court having jurisdiction is conclusive, unless reversed or opened or procured by fraud, against all parties who had a right and an opportunity to be heard. [Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 1298-1314; Dec. Dig. § 315.*] 5. EXECUTORS AND ADMINISTRATORS (§ 315*)— DISTRIBUTION VALIDITY DECREE OF Where a woman who has cohabited with by him as his wife, and the five sons whom a decedent for 30 years and been recognized she has borne him and whom decedent has recognized as such, prosecute their claim to his property and fail to disclose that there was no legal marriage, this does not constitute such a fraud on the orphans' court as will render void a decree of distribution in their favor. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 1298-1314; Dec. Dig. § 315.*] 6. DESCENT AND DISTRIBUTION (§ 72*) — IN- |