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lips."

Mr. Birch, the attorney, died before the hearing, but Miss Patterson, the stenographer, was produced as a witness, and testified that on the day the will was made Mrs. Phillips displayed a "remarkable memory"; that she gave every appearance of having “a mind of her own," and was "perfectly clear upon what she wanted to do"; that her demeanor indicated "she was an intelligent woman and knew what she was doing"; and that, when Mr. Birch advised her against a bequest of $10,000 she wanted to make to the county for the redemption of bonds, she insisted upon having her own way in the matter. The witness stated that Mr. Miller was present during the dictation of the first 16 paragraphs of the will, and left immediately thereafter; that he was in and out of the office during the afternoon session, but was not there when Mr. Birch asked the testatrix concerning the disposition of her residuary estate; and finally that Mr. Miller took no part in the preparation of the will-"he did not say anything" or "make any suggestions." The witness said that from time to time, as various parts of the will were prepared, they were read over to Mrs. Phillips, and she placed her name on each page as she approved it. Charles Miller testified that he never made any suggestions to the testatrix concerning the disposition of her property, and that, when he accompanied her to Mr. Birch's office, he did not know that she intended to make a will or to designate him as her residuary legatee.

charged himself every time he received any, "that Charles Miller ever practiced any deof their money"; that T. F. Birch, Esq., a ceit or fraud on Elizabeth Phillips, or that member of the Washington county bar, of he ever attempted to prejudice her against her high standing, who had represented the de- heirs at law, or that he ever suggested to her cedent and her family for some years, drew that she should make a will or what provithe will in controversy; that Mr. Miller ac-sions should be in it if she made one, or that companied the decedent to Mr. Birch's office, he ever indulged in any flattery of Mrs. Philat her request, and when they arrived she informed the attorney that she wanted to make a deed to Mr. Miller, conveying the coal under a large and valuable piece of land owned by her; that, after this deed was prepared, she stated that she desired to make her will; that she spent the greater part of the day with Mr. Birch and his stenographer, and, without any memoranda previously prepared, gave specific directions for the 89 bequests which appear in the will, in almost every instance recalling the name of the person she desired to designate; that, after this had been done, Mr. Birch asked her to whom she wanted the rest of her estate to go, and she said “Charles Miller," also naming him as her executor; that Mr. Miller was not in the office during the preparation of the entire will, but he was in and out; that he took Mrs. Phillips out to midday dinner, and in a short time came back with her; that, when the dictation was completed, he accompanied her to the house of a friend whom she desired to visit, and remained with her while the will was being transcribed; that he returned with her, and, just prior to signing the will, Mrs. Phillips affixed her signature to the deed and handed it to Mr. Miller, saying, "This is yours;" that she then executed the will in the presence of Mr. Birch and Miss Patterson, the stenographer, and it was put in the former's safe; that the deed was not recorded until after Mrs. Phillips' death, and in the meantime the land continued in her name; that, "after the deed had been executed and delivered and the will made, Mrs. Phillips made declarations to different parties tending to show she had full knowledge of what she had done," and that the will was her own deliberate act; that she stated inter alia she had been to Washington, had seen her attorney and arranged her business as she wanted it, and that she had carried out a promise made to her sister on her deathbed and "fixed everything for Charley" (meaning Charles Miller); that to one of the witnesses she said, concerning her will, "I think it will surprise some of the people, and I hope it will." Under the heading of "Facts Not Found," the court states that there was no testimony to show that the testatrix was in any sense "mentally incapable of making a will"; that "any improper relations ever existed between Elizabeth Phillips and Charles Miller, or that the relation between them was different from that which might very properly be expected between persons who sustained the business relations to each other that they did"; fur

The will consists of the usual introduction, a direction that all collateral inheritance taxes shall be paid out of the residuary estate, and a setting aside of $10.000 to maintain the family cemetery lot, then follow 89 tersely stated provisions disposing of lands and moneys to public institutions, friends. and relatives, among others $10,000 to the county of Washington for the redemption of courthouse bonds, bequests to churches in the vicinity, to the board of home missions and foreign missions and religious societies in Pittsburgh, to certain school districts, to charitable associations, and to the Washington County Home, then a devise of the surface of a 120-acre farm to Charles Miller, and another of the surface of a 74-acre farm to one Mark Galway, who for years had been a tenant on the land, after which came the residuary provision and the appointinent of the executor.

There is but one specification of error, and that goes to the final decree refusing

the jury as a basis of any finding which he would not approve; in a word, he cannot permit the jury to do what he, as a chancellor (after weighing the evidence in the light of the established law upon the subject), would not do." Caughey v. Bridenbaugh, supra, 208 Pa. 415, 420, 424, 433, 57 Atl. 821. In so far as the testimony of the proponent of a will is not inherently unreasonable or improbable, the judge may consider it in measuring the preponderance of the evidence (Yardley v. Cuthbertson, 108 Pa. 395, 460, 1 Atl. 765, 56 Am. Rep. 218; Wilson v. Mitchell, 101 Pa. 495, 505; Yorke's Estate, 185 Pa. 61, 71, 39 Atl. 1119); and, in the absence of "direct proof of undue influence actually exercised by the proponent" or "a presumption thereof arising against him from something in the evidence indicating weakness or infirmity in the testatrix," his testimony, when taken with the other proofs in the case, may so far discharge the burden of explaining away any circumstances introduced by the contestants' witnesses, which apparently require explanation, as to justify binding instructions in favor of the will or the refusal of an issue (Caughey v. Bridenbaugh, supra, 208 Pa. 421, 433, 57 Atl. 821).

of the findings, and no exceptions thereto appear to have been taken in the court below. Bull's Appeal, 24 Pa. 286; Robb's Appeal, 98 Pa. 501. We have read the testimony, however, and are not convinced of reversible error in the court's conclusions concerning the facts or in the final decree. From the cases cited to us, and the various authorities therein referred to, we deduce the following applicable general principles: [1] An issue devisavit vel non is a matter of right, where the existence of a substantial dispute upon a material question of fact is demonstrated to the court by competent evidence which, under the circumstances of the case, measures in probative force up to the requirements of the law; or, in other words, as the rule has heretofore most often been put, when, upon a review of all the proofs, a verdict against the will could be properly sustained by a trial judge, the controversy must be submitted to a jury, even though the judge should feel that, were he sitting as a juror, he would not draw the inferences or reach the conclusions contended for by the contestants. But if the testimony is such that the judge would feel constrained to set aside a verdict against the will as contrary to the manifest weight of the evidence, determined according to relevant legal [3] When a will is attacked on the ground standards, it cannot be said that a substan- of undue influence, "it is necessary to bear tial dispute has arisen. De Haven's Appeal, in mind the meaning of the term; 75 Pa. 337; Harrison's Appeal, 100 Pa. 458, as a legal phrase it is used as denoting 460; Schwilke's Appeal, 100 Pa. 628; Knauss' Appeal, 114 Pa. 10, 6 Atl. 394; Sharpless' * Estate, 134 Pa. 250, 260, 19 Atl. 630; Herster v. Herster, 116 Pa. 612, 626, 11 Atl. 410; Roup's Estate, 236 Pa. 31, 33, 84 Atl. 592, and other cases infra.

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something violative of legal duty. The word 'influence' does not refer to any and every line of conduct capable of disposing in one's favor a fully and selfdirecting mind, but to a control acquired over another which virtually destroys his free agency. *In order to constitute undue influence sufficient to void a will, there must be imprisonment of the body or mind, fraud, or threats, or misrepresentations, or circumvention, or inordinate flattery, or physical or moral coercion, to such a degree as to prejudice the mind of the testator, to destroy his free agency, and to operate as a present restraint upon him in the making of the will." Stokes v. Miller, 10 Wkly. Notes Cas. 241; Miller v. Miller, 3 Serg. & R. 267, 8 Am. Dec. 651; Zimmerman v. Zimmerman, 23 Pa. 375; Tawney v. Long, 76 Pa. 106; Herster v. Herster, supra, 116 Pa. 612, 11 Atl. 410; Id., 122 Pa. 239, 16 Atl. 342. 9 Am. St. Rep. 95; Allison's Estate, 210 Pa. 22, 59 Atl. 318; McNitt's Estate, 229 Pa. 71, 78 Atl. 32: Englert v. Englert, 198 Pa. 326. 47 Atl. 940, 82 Am. St. Rep. 808; McCauley's Estate, 224 Pa. 1, 5, 73 Atl. 181; Keller v. Keller, 239 Pa. 467, 86 Atl. 634.

[2] The "absolute right of the parties" to a trial by jury depends upon "the strength of their evidence," and to determine that, on an application for an issue, the orphans' | court must hear and weigh the proofs as a whole. Harrison's Appeal, supra, 100 Pa. 461 and 462; Brink v. Brady, 224 Pa. 116, 120, 73 Atl. 215. "In an issue tried in the common pleas involving the validity of a will assailed on the ground of undue influence, the trial judge sits as a chancellor." (McCormick v. McCormick, 194 Pa. 107, 117, 45 Atl. 88; Robinson v. Robinson, 203 Pa. 400, 416, 53 Atl. 253; Caughey v. Bridenbaugh, 208 Pa. 414, 415, 57 Atl. 821; Roberts v. Clemens, 202 Pa. 198, 200, 51 Atl. 758); and, when such a case is before the orphans' court on a petition for an issue, in practical effect the same rules, concerning the duties of the judge, apply there as would hold good upon a trial in the common pleas (Yorke's Estate, 185 Pa. 61, 62, 39 Atl. 1119). [4] Where a person has testamentary ca"In every case tried before a jury in which pacity, but is so weak physically or mentally the trial judge sits as a chancellor, the evi- as to be susceptible to undue influence, and a dence is addressed to him quite as much as substantial part of his estate is left to one to the jury; it must as a whole be judged occupying a confidential relation to him, the by him independently of the jury, must sat-burden is upon the latter to show that no imisfy his (legal) conscience as well as the proper influence controlled the making of

nection with this case see Frew v. Clarke, 80 · Bridenbaugh, supra, 208 Pa. 423, 57 Atl. 821. Pa. 170, 180; Cuthbertson's Appeal, 97 Pa. 163, 172; Caldwell v. Anderson, 104 Pa. 199, 204]; Wilson's Appeal, 99 Pa. 545, 555; Cuthbertson's Appeal, 97 Pa. 163; Yardley v. Cuthbertson, 108 Pa. 395, 1 Atl. 765, 56 Am. Rep. 218; Robinson v. Robinson, 203 Pa. 400, 422, 425, 53 Atl. 253; Blume v. Hartman, 115 Pa. 32, 40, 8 Atl. 219, 2 Am. St. Rep. 525; Wilson v. Mitchell, 101 Pa. 495, 505; Armor's Estate, 154 Pa. 517, 26 Atl. 619; Miller's Estate, 179 Pa. 645, 652, 653, 36 Atl. 139, 39 L. R. A. 220; Adam's Estate, 220 Pa. 531, 69 Atl. 989, 123 Am. St. Rep. 721; many of the foregoing cases are explained in Yorke's Estate, 185 Pa. 61, 70, 71, 39 Atl. 1119); but in a case where the decedent's testamentary capacity is conceded, and there is no evidence of weakened intellect, the burden is upon those asserting undue influence to prove it, even where the bulk of the estate is left to one occupy ing a confidential relation (Frew v. Clarke, SO Pa. 170; Harrison's Appeal, 100 Pa. 458; Caldwell v. Anderson, 104 Pa. 199, 204; McEnroe v. McEnroe, 201 Pa. 477, 482, 51 Atl. 327; Friend's Estate, 198 Pa. 363, 47 Atl. 1106; Logan's Estate, 195 Pa. 282, 45 Atl. 729; Coleman's Estate, 185 Pa. 437, 40 Atl. 69; Yorke's Estate, supra, 185 Pa. 70, 39 Atl. 1119; Miller v. Oestrich, 157 Pa. 264, 27 Atl. 742; Douglass' Estate, 162 Pa. 567, 29 Atl. 715; Hook's Estate, 207 Pa. 203, 56 Atl. 431; Caughey v. Bridenbaugh, 208 Pa. 414, 424, 57 Atl. 821).

[5] A testator of sound and disposing mind is entitled to distribute his property as he may see fit, without regard to the personal motives or prejudices which influence him (Dean v. Negley, 41 Pa. 312, 316, 80 Am. Dec. 620); and, when he makes substantial provision in his will for one occupying a confidential relation, the strict legal presumptions that apply to and govern cases of gifts inter vivos under like conditions do not control (Caughey v. Bridenbaugh, supra, 208 Pa. 428, 430, 433, 57 Atl. 821).

In their brief the appellants say: "We frankly concede that the evidence did not warrant the granting of an issue to deter mine whether or not, at the time of the ex'ecution of said paper, the said Elizabeth Phillips was possessed of sufficient testamentary capacity to make a valid will; the only question before the court is whether or not the will was procured to be executed by undue influence exercised upon Elizabeth Phillips by Charles Miller." After reviewing the testimony and calling attention to the fact that there was no direct proof of solicitation, a course of flattery, or other elements necessary to constitute undue influence, the court below states that the circumstances relied upon by the contestants do not in themselves prove that fraud (undue influence); "that most of them, if not all of them, are just as consistent with the hypothesis that no fraud existed"; and that since no direct attack had been made upon the truthfulness of the proponent or of Miss Patterson, the only living witness to the will, and since there was nothing "inherently unreasonable or improbable in her story or that of Charles Miller," considering all of the proofs in the case, “if a jury would render a verdict against the | validity of Elizabeth Phillips' will on the ground that, when she executed it, her act was not voluntary and of her own free will, it would be the duty of the court to set such verdict aside." We have held that the testimony of a disinterested person who was "actually present at the drafting of the will, its engrossing and submission to the testator, heard his assent to its provisions, saw him affix his signature thereto, and listened to his remarks and conversation," is entitled to "belief and reliance" (Tasker's Estate, 205 Pa. 455, 459, 55 Atl. 24; Masterson v. Berndt, 207 Pa. 284, 288, 56 Atl. 866); and we cannot say that the learned judge below erred in this instance when he considered the evidence given by Miss Patterson; nor do we think error was committed in taking cognizance of the testimony of the proponent. The adjudication plainly shows that the court did not rest its final conclusion on the testimony of these two witnesses, but rather upon what it deemed to be the weight of the evidence, judged according to the applicable rulings of this court, and thereunder the failure of the contestants to prove their allegation of undue influence. Of course such influence may be shown by circumstantial evidence demonstrating a prior course of improper conduct calculated to produce an undue impression likely to remain and operate in the subse

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[6, 7] Mere old age does not prove mental weakness (Thompson v. Kyner, 65 Pa. 368, 380; Messener v. Elliott, 184 Pa. 41, 49, 39 Atl. 46; Masterson v. Berndt, 207 Pa. 284, 289, 56 Atl. 866); and, where the charge is that undue influence was exerted on a mind healthy, strong, and free, the proof "must be clear and convincing" (Caughey v. Bridenbaugh, supra, 208 Pa. 427, 57 Atl. 821; also see Logan's Estate, 195 Pa. 282, 289, 45 Atl. 729, Hook's Estate, 207 Pa. 203, 205, 56 Atl. 428; Eble v. Fidelity & Trust Co., 238 Pa. 585, 86 Atl. 485). When the effort is to establish undue influence without direct proof upon the point, "it cannot be made out by circum-quent making of a will (Steadman v. Steadstances which, though to be expected if there man, 10 Sadler, 539, 14 Atl. 406); but it is was fraud, are equally consistent with its not enough simply to prove a course of conabsence,, and such circumstances cannot, duct, consistent with propriety, which afwhether taken singly or collectively, justify forded opportunities for undue influence (Ty

(Pa.

(244 Pa. 82)

APPLEBAUM et al. v. PHILADELPHIA
RAPID TRANSIT CO.
(Supreme Court of Pennsylvania. Feb. 9, 1914.)
DAMAGES (§ 208*)-PERSONAL INJURIES-EVI-

testimony shows that Charles Miller was decree complained of should be reversed; it courteous to the testatrix personally and is accordingly affirmed, at the cost of the apdiligent in his attention to her affairs for pellants. several years prior to the making of the will, and that she undoubtedly had a high regard for and absolute confidence in him; further, it indicates generous appreciation of his kindness and constant attentions and is sufficient to prove a confidential business relation between them; hence, had there been any proof of extreme infirmity or mental weakness, this case would have been one proper to send to the jury. But with the conceded fact of Elizabeth Phillips' strong mentality at the time she made her will, and in view of the lack of direct evidence of undue influence, we cannot say that the court below erred when it refused the issue.

DENCE.

ger's action for injuries showed that prior to Where the evidence in a street car passenthe accident she was in good health, and that subsequent thereto she suffered from extreme nervousness and hysteria, and suggested no the question whether defendant's negligence was cause for her condition other than the accident, the proximate cause of her condition was for the jury, though there was no external evidence of physical injury.

[Ed. Note. For other cases, see Damages, Cent. Dig. §§ 54, 64, 68, 132, 144, 145, 205, 220, 533, 534; Dec. Dig. § 208.*]

Philadelphia County.
Appeal from Court of Common Pleas,

against the Philadelphia Rapid Transit Com-
Trespass by Lizzie Applebaum and another
pany for personal injuries. From judgments
for plaintiffs, defendant appeals. Affirmed.

Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ.

Harold B. Beitler, of Philadelphia, for apKrauss, both of Philadelphia, for appellees. pellant. Morris Dos Passos and Sidney L.

We have not attempted specifically to notice each circumstance depended upon by the contestants or the explanations thereof relied upon by the proponent; to pursue such a course would unduly extend this opinion. But we have examined and considered all the proofs, and, after so doing, we agree with the court below that, no matter how unreasonable the distribution may seem to others, "if she (the testatrix) was of sound and disposing mind and memory when she made her will, and was not acting under an illegal restraint, then her will, in law, must stand, although it may offend the sense of propriety and justice of every man in the land; her prejudices, her likes and dislikes, acquired by her associations in life, were her own as the plaintiffs in this action, was a passenger PER CURIAM. Lizzie Applebaum, one of much as the property of which she made in a car of the defendant which came into distribution." Cauffman v. Long, 82 Pa. 72, collision with another of its cars. 77. A court of first instance is always in a The cars better position than a reviewing tribunal to and the collision was so severe as to shatter were running at right angles to each other. pass upon the elements of fact entering into to some extent the side of the car in which cases of this character, and on appeal its she was riding and to break the glass in its judgment thereon is entitled to the utmost windows. She testified that her side and consideration. In the present case, had the shoulder were struck by the window sill evidence shown or clearly tended to show and side of the car. facts sufficient in law to indicate a “substan- pregnant, and immediately following the colShe was at the time tial dispute" as to whether or not the will lision she had severe pains throughout her had been produced through undue influence body and has since suffered from them and exercised by the proponent over the mind of from extreme nervousness and hysteria. the testatrix, it might have been reversible | There were no bruises on her body nor exerror to refuse the issue; but the court below, after applying the relevant legal principles established by our decisions, found the manifest weight of the evidence to be against the contestants, and, if right in this, it was not obliged to submit the case to a jury.

ternal evidence of physical injury. Her physicians testified that she was suffering from traumatic hysteria following an injury or accident of some kind, and that such cases are not unusual where there are no bruises or marks on the body.

The question at the trial was whether from While the introductory sentence of the ad- the evidence adduced by her, her health being judication suggests that possibly matters shown to have been good before the accident. aliunde the evidence may have been consid-a causal connection between the condition ered by the court, and in some instances the from which she was suffering and the defendstatement of a legal principle relied upon is ant's negligence could be inferred with reaopen to just criticism, yet a careful reading sonable certainty. This question was subof the whole record, together with the tes-mitted to the jury with great care, and with timony and the able argument of counsel ¦ clear instructions that if she sustained no acfor the appellants, has failed to convince ustual physical injury, but simply suffered that, under the law as heretofore ruled, the from fright and nervous shock, there could

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(244 Pa. 109)

COHEN V. KELLER.
(Supreme Court of Pennsylvania. Feb. 9,
1914.)

PLEDGES (§ 47*)-REASSIGNMENT-UNEXTIN-
QUISHED DEBT.

One who gives notes with collateral for payment of a fixed sum and the profits of a certain corporation, and defends a suit on such notes on the ground that the corporation had been forced to dissolve for lack of profits, cannot obtain a reassignment of such security without payment of the notes.

[Ed. Note. For other cases, see Pledges, Cent. Dig. §§ 111, 112; Dec. Dig. § 47.*]

Appeal from Court of Common Pleas, Phila

CONTRACTS (§ 328*)-BUILDING CONTRACT-delphia County.
DEFENSES.

In an action for the balance due on a building contract, it was no defense that one defendant had withdrawn from the enterprise into which he and his co-obligor had entered, and that he had notified plaintiff thereof; such withdrawal and notice not releasing him from his obligation to plaintiff.

[Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 1571-1584; Dec. Dig. § 328.*] Appeal from Court of Common Pleas, Philadelphia County.

Assumpsit by Owen Fogarty against Joseph F. A. Hagan and Charles H. Witty, to recover balance due on building contract. From judgment for plaintiff, defendant Witty appeals. Affirmed.

Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, STEWART, and MOSCHZISKER, JJ.

Daniel R. Rothermel and Walter Biddle

Saul, both of Philadelphia, for appellant.
Owen J. Roberts, of Philadelphia, for ap-

pellee.

Suit by Andrew J. Cohen against Joseph S.
Keller. From the judgment dismissing the
bill, plaintiff appeals. Affirmed.
Argued before BROWN, MESTREZAT,
MOSCHZIS-
POTTER, STEWART,
KER, JJ.

and

Andrew Wright Crawford and Frederick M. Leonard, both of Philadelphia, for appellant. Frank P. Prichard, William C. Jones, and John Stokes Adams, all of Philadelphia, for appellee.

STEWART, J. The appeal is from a decree dismissing a bill wherein the relief sought by the plaintiff was the reassignment of a certain policy of life insurance which he had pledged as collateral security in a transaction based on the following written undertaking by the party to whom the pledge had been made: "The writer, J. S. Keller, will, in consideration that you transfer to me twenty per cent. of your one-half interest in umbrella tubing and receipt of like amount from Mr. Seymour's interest, obligate myself to provide PER CURIAM. The appellant, Witty, is all the necessary cash funds to build one comone of two defendants against whom a judg-plete set of machines to make the above menment was obtained in an action on a writ- tioned tubing. I will agree to advance to A. ten contract for the erection of a building in J. Cohen the sum of fifteen hundred dollars accordance with certain plans and specifica- ($1,500) same to be secured by Mr. Cohen tions. A recovery in the action was resisted transferring me his present life insurance by both defendants on the ground of failure policy as collateral. The amount advanced to of the plaintiff to substantially perform the be paid back to me from the immediate procontract and by Witty for the additional rea-ceeds of profits derived from the sale of umson alleged by him that he had been released brella tubes made. The above is respectfully from his contract obligations by the plain- submitted for your convenient consideration. tiff. The first ground of defense was sub-J. S. Keller." The parties to the transaction mitted to the jury with full and accurate instructions to which we find no valid objection. The second ground was not sustained by proof received, and the offers of testimony rejected would not have sustained it, if admitted. The offers were not to prove that the plaintiff had released Witty, or that they had mutually released each other-they went only to the extent of showing that Witty had withdrawn from the enterprise into which he and his co-obligor entered, and that of this he had notified the plaintiff.

were jointly interested in an enterprise which contemplated the manufacture and sale of umbrella tubes. This fact has no importance, however, except as explaining the reference to the source from which the amount advanced by Keller was to be returned. It may be added that the enterprise wholly failed. The learned chancellor found that the money advanced to Cohen was used by him for his personal wants, and not for the business of manufacturing umbrella tubes, and that it became a debt due from Cohen to Keller. The

We find no error in the record, and the amount so advanced was actually $2,000, and judgment is affirmed. for this Cohen gave Keller two notes, each

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