he did make known the alleged statement ecutor of the will, testifies that said of Mr. Geesey to Stork, it was only four note was so paid and delivered to the years before the death of the testator and testator, who took it home with him. would only cover this claim subsequent Caroline Stork and her husband, tesfor a space of four years. The words tify that on March 2nd, 1892, she loanalleged to have been used were not effec-ed Samuel Geesey $1,800 without tive, but a loose expression about the in- note, and that the note in question was tention of the testator, as to his estate. not paid on January 3rd, 1895, but the The words were not sufficiently definite as a contract, to will to the claimant the whole of his estate. "Declarations which may be expressions of intention, are not a promise sufficient to sustain an action; and where services have been rendered in mere expectation of a legacy, the law will imply no promise to pay for them;" Hartman's Appeal, 3 Grant 271, and cases cited. Here the board and services, if not furnished entirely on the strength of the family relation and in payment of the maintenance of the claimant and his wife by the occupancy of testator's farm free of rent, may have been partly furnished in expectation and not a valid promise of a legacy. There has, in that case, been no disappointment. $1,800 paid her by Samuel Geesey, the testator, was this money loaned to him "without a note;" and that she retained possession of the note. Aside from the improbability of Caroline Stork loaning to Samuel Geesey $1,800.00 on March 2, 1892, and again giving him exactly the same amount on November 1, 1893, taking the note in question for the same, and not demanding a note also for the $1,800 first fur nished the testator, without showing the consideration for the $1,800 note, the facts and circumstances show that the testimony of the husband and wife is not true; and that the said note was paid and surrendered to Samuel Geesey, as testified by Mr. Loucks. It is most improbable that she would With the exception of one thousand be possessed of these two large sums of dollars bequeathed to Edward W. Loucks, money at periods so close together as Mrs. Stork is bequeathed a life estate in March 1892 and November 1893, and it the whole e tate of the testator and Mar- is incredible, in the absence of evidence tin Stork, the claimant, $1,000 absolute- to show where and how she became posly, after the death of his wife. The Au- sessed of these $3,600 to make these ditor is plainly in error in the awarding loans. The action of both the testator of $1,738.50 for board, $16.00 for medi- and the claimant are inconsistent with cine purchased, and $7.00 for "fetching" this. Why would the defendant give the medicine. There is no ground shown his note for the sum she gave him on to authorize the sustaining of these November 1st, 1893, without including awards; and the first, second and third the $1,800 alleged to have been previously exceptions must be sustained. loaned to him by his sister, without a the testator had previously received a note, and why did she not demand it, if loan without a note, as she testified; and The fifth and sixth exceptions go to the awarding to Caroline Stork the sum of $1,949 on the promissory note dated November 7th, 1893, in evidence for why, if their testimony is true, and she $1,800; and in not awarding the balance deliver it in part payment on the farm held possession of the note, did she not on the account less the expenses of audit and funeral expenses allowed, according and funeral expenses allowed, according to the will. conveyed to her by her brother, the testator, in 1898, instead of assigning her note bearing interest, against Albert M. The execution of the note in question Ebert? If said note on which the award is not disputed, but it is alleged by the excepted to by her was made, was then exceptants that the said note was paid still due and unpaid, why was it not surJanuary 3, 1898, by Samuel Geesey, at rendered then as part of said purchase the First National Bank, of York, when money of land conveyed to her for $2,a certificate of deposit was given to Caro- 850.00? Why did she not, in answer to line Stork for $1,800, which amount she Mr. Loucks, the executor, instead of asshortly afterwards loaned to Albert M. serting that the decedent, Samuel GeeEbert. Edward W. Loucks, the ex-sey, left no debts, except funeral ex penses, say to the executor, that he was side of my husband at Mt. Zion Church indebted to her in $1,800, on the note in in the same manner and style of my husquestion? band and all just debts and funeral fully The evidence in the case all corrobo-paid and satisfied by my executor hererates the testimony of E. W. Loucks, inafter named, and pay to said Church that the note in question was paid Jan- the sum of Fifty dollars for the use and uary 3, 1895, and that said note on which benefit of keeping the graves in repair as demand is made was given for the $1,800 soon as conveniently may be after my loaned to the testator, March 2nd, 1892, deceased." 'without a note." The Auditor is clearly in error in admitting in evidence paper J. D. P. K., and in finding said note unpaid; and in awarding to Caroline Stork $1,949.40. Therefore the fifth and sixth exceptions are sustained. "Item. I order and direct all my estate to be converted into money by my executor as soon as possible after my decease, either by public or private sale for the best price that can be gotten for the same and make as good a title to the purchaser thereof as I could do while livAll the exceptions except the seventh ing, and after the same hath been conare sustained, and the report is set aside verted as aforesaid I give, devise and at the costs of Caroline and Martin Stork, bequeath as follows: To my brother and the Auditor is directed to distribute Daniel Boeckel, to the children of Elizathe balance in accordance with this opin-beth my sister intermarried with George ion, and in accordance with the provi- Sipe and to the children of sister Louisa sions of the last will and testament of intermarried with Jacob Sipe and to the children of Michael Boeckel share and Samuel Geesey, deceased. share alike." Sipe's Estate. Will-Distribution-Per Capita. That the only subject before your Auditor is the question of distribution and the manner in which the fund shall be distributed. J. St. Clair McCall, Esq., Testator's will devised her property "To my brother Daniel Boeckel, to the children of Elizabeth my sister intermarried with George Sipe contended that the fund was to be disand to the children of sister Louisa intermar-tributed per stirpes and not per capita, ried with Jacob Sipe and to the children of and against this contention there was no Michael Boeckel share and share alike." The other contention. Auditor distributed the balance to the legatees per stirpes. HELD, that his report must be confirmed. In support of this contention your auditor finds that the fund must be distributed per stirpes being governed in such conclusion by the law as laid down in Fissel's Appeal, a York County case, in 27 Penna, State Reports, page 55, &c., and a line of cases adjudiThe copulative is present between the desig-cated by the Supreme Court of Pennnation of children of the deceased brother and sylvania. It is certain that if the word "and" had been inserted after Daniel Boeckel in the bequest, the devise would be like Fissel's Appeal, 27 Pa. 55, and would be ruled by said case. sister named in the will, and a comma takes the place of "and" after Daniel Boeckel, separating it from the classes of nephews and nieces following as effectually as the word "and"... The language used in the will clearly justifies the conclusion that a per capita distribution is intended; but even if it is not clear the distribution, under the well established decisions in doubtful cases must be per stirpes. Exceptions to Auditor's report. Miller, is as follows: Your Auditor finds that Catharine Sipe died on the 9th day of November, A. D. 1902, having in her life time made her last will and testament, in which, inter alia, she bequeathed as follows: I direct to be buried by the Fissel's Appeal seems to be an almost parallel case and in which the Court says "In construing such devises in favor of the next of kin, we cannot reject our legal customary principles governing the descent of estates and according to them distribution goes by classes and must be presumed to be the intention of the testafor all are supposed to assent to the gentor generally unless the contrary appears, In this case before your auditor the testaeral justice of the law in this subject." tor clearly designated the several classes, especially designating the classes by repeating the word "and" between each class, as in Fissel's Appeal, and in the opinion of your auditor the testatrix, Catharine Sipe, surely intended that her estate should be divided in four equal classes, the children in each case to take the parents' share. Upon this authority and line of cases; Fissel's Appeal, Ibid; Minter's Appeal, 40 Pa. 111; Hiestand v. Mayer, 150 Pa. 501; Ashburn's Appeal, 159 Pa. 545, and Gring's Appeal, 31 Pa. 293. Your auditor proceeds to make the distribution as hereinafter set forth in schedule of distribution. To this report exceptions were filed, which were in substance as follows: The Auditor erred in finding that the fund must be distributed per stirpes. The Auditor erred in not distributing the fund per capita. Ed. Chapin for exceptions. October 17, 1904. BITTENGER, P. J. -The exceptions are to the distribution of this estate to the legatees per stirpes instead of per capita. The material part of the will in this controversy, follows: After ordering her estate to be converted into money, the testatrix provides the estate shall pass "To my brother, Daniel Boeckel, to the children of Elizabeth, my sister intermarried with George Sipe and to the children of my sister Louise, intermarried with Jacob Sipe, and also the to the child. ren of Michael Boeckel, share and share alike." It is certain that if the word "and" had been inserted after Daniel Boeckel in the bequest, the devise would be like Fissel's Appeal, 27 Pa. 55, and would be ruled by said case. The copulative is present between the designation of children of the deceased brother and sister named in the will, and a comma takes the place of "and" after Daniel Boeckel, separating it from the classes of nephews and nieces following as effectively as the word "and." the legatees are named in the will; and expression "as in one breath," rated in the manner and order, as in Fis- In Smith's Appeal, 159 Pa. 346, the word "each" was employed in naming the legatees. In commenting on Minter's Appeal, the Supreme Court say: "Minter's Appeal, 40 Pa. 111, is really in favor of the appellee, for, though a distribution "share and share alike among the children of A. and the children of M. and to my sister B." and "That said B. and the children of my said brothers A. and M. shall have the residue of my estate, share and share alike," was held to mean a division per stirpes, it was on the ground that the two phrases being somewhat conflicting left the intent in doubt, and therefore weight was given to the rule of the statute of distribution, and the court added sufficiently for our case, "If he meant that his nephews should be each equal to his sisters, the word each would have made his meaning clear." "Where a testator bequeaths to his next of kin in classes, leaving it doubtful in what proportions they are to take, he will be presumed to have the familar rule of the Statute of Distribution in his mind, and the several classes must take per stirpes and not per capita," Fissel's Appeal, 27 Pa. 55; Gring's Appeal, 31 Pa. 292; Risk's Appeal, 52 Pa. 269; Minter's Appeal, 40 Pa. 111; Harris's Estate, 74 Pa. 452-453; Hoch's Estate, 154 Pa. 417; Ashburner's Estate, 159 Pa. 545; Scott's Estate, 163 Pa. 165. It is forcibly said in Fissel's Appeal: "In construing such devises in favor of next of kin we cannot reject our legal and customary principles governing the We cannot agree with the counsel for descent of estates, and according to them, the exceptant that the distribution should distribution goes by classes and this must have been per capita as in Dible's Es- be presumed to be the intention of the tate, 811⁄2 Pa. 279, and Priesters' Estate, testators generally, unless the contrary 25 Sup. Ct. R. 386, in the last of which appears, for all are supposed to assent to the general justice of the law on this sub- Power Co., 17 YORK LEGAL RECORD ject. This is only another form of the 134) and judgment entered on the verrule that, in doubtful cases, the claim of dict. From this judgment this appeal the heir shall have the preference.". was taken. We The distribution by the auditor is made on a construction of the testator's will entirely satisfactory to the court. think the language used in the will clearly justifies the conclusion of the auditor; but even if it is not clear, that a per capi ta distribution is intended, the distribution, under the well established decisions, must be per stirpes The exceptions are dismissed at the costs of the exceptants, and the report is confirmed. SUPREME COURT. On the second trial, the charge of the Court, relating to the question of contribCarlisle tables to show expectancy of age, utory negligence and the admission of the is as follows: Did she act with that ordinary care and prudence which is required of everyone who attempts to recover damages for injury inflicted in this manner; did she use her eyes as she was bound to do, as a person of ordinary prudence would do; did she observe as she went to that Cold Storage plant the marks upon the ground of these holes and this work, as she was York Haven Power Co.'s Appeal. bound to do; did she face this hole as the evidence says she did, in going up east Negligence-Contributory- Expectancy. on Arch street, and as she would do goAppellee, while standing on a pavement on ing up this space, at least, facing in that one of the city streets, stepped backward and direction, and use the ordinary care and fell into a hole dug by the appellant company for the purpose of erecting a pole and was secaution which people are compelled to verely injured and permanently disabled. The use who travel on sidewalks and who evidence showed that the hole into which she make an attempt to bring suit and refell, the pile of dirt and the pole to be placed cover damages for injuries inflicted when in the hole were aside of the appellee during her approach to the spot; that she stepped going on sidewalks. Now, that is a within one step of the hole and talked for five question which the Supreme Court have minutes, and that she stepped to one side and backward and then fell into the hole. The Court below was asked to instruct the jury that lpaintiff (appellee) could not recover, but refused to do so. HELD, not to have been error. The exceptional facts may make the case a close one, and place it near the border line, but as there was at least a doubt whether the plaintiff exercised ordinary care under the circumstances, the question was for the jury. The Carlisle tables were admitted "to assist the jury in arriving at the proper time during which plaintiff may be deprived of her earning power and may suffer and be inconvenienced by the accident." HELD, not to be error. Appeal from the judgment of the Court of Common Pleas of York County, Pa. At the first trial of this case the Court (Bittenger, P. J) entered a compulsory non-suit. (See Iseminger v. York Haven Power Co., 16 YORK LEGAL RECORD 133) An appeal was taken to the Supreme Court and the judgment was reversed. (See Iseminger's Appeal, 17 YORK LEGAL RECORD 31.) decided is a question for the jury to de- On the second trial, a verdict was your everyday walk and life. You can When you use a sidewalk you must use your eyes, and you havn't a right to obstruct your vision by putting something in the way; but we don't instruct you in anywise is not able to carry on that work any that this sun-bonnet-although we are longer or do the hard work she used to asked to do so in the points-was such do; and for her physical suffering and an obstruction of vision as will justify a uch physical suffering she may likely verdict for the defendant in this case. It sustain in the future, and her want of is a matter for the jury to determine earning power in the future. Any damwhether this plaintiff, the woman, used ages for future disability cannot readily such ordinary care and caution as a per- be reckoned, because no one can tell son using a sidewalk in a city like York how long she will live; the jury cannot is required to use; whether she used such tell, nor the Court nor anybody; that is care and caution as a prudent, cautious only known to the Ruler of our destinies. person would use under the circum. It is well we do not know, any of us, stances; whether by any negligence on when our time shall come, because it is her part in failing to see this hole, or if not a pleasant matter to contemplate and she did see it neglect to care for herself, it is a very serious hour to have in view, she contributed in any degree to the ac and it is providential we do not know cident; whether she is to blame for her when we shall pass away; that is merciwant of care and caution in any respect, fully concealed from us. But in order to and whether her falling in this hole is assist the jury in arriving at the probadue to want of ordinary care and caution. | ble time this woman may be deprived of If it is in any respect, if she contributed her earning power, and may suffer and in any degree in falling into this hole, be inconvenienced by this accident, the either by want of caution in approaching Carlisle Tables are introduced here to it, or leaving it, or want of care in ob show the probab e limit of her life-exserving the locality and condition of the pectancy of life. That table shows, at sidewalk she was about to use, -if she in the age of 24 years, her expectancy would any degree contributed to this injury she be thirty-eight and three fourths years. cannot recover anything and you will This does not mean by any means this stop right there and find a verdict for the plaintiff will live that long, as I said tedefendant. But, on the other hand, if fore. This table is the result of the ob yon find that the defendant was guilty of servation and experience of successful innegligence in digging the hole and leav-surance companies engaged in the insuring it uncovered, under the circum-ance of human life. It is not to be taken stances, then you go one step further and as a ver ty, or the average stated as a find plaintiff was not guilty of contribut- fact: but it is only to aid the jury in aring to this injury by her manner at that place, and by her want of observation and care, then you determine these two issues in favor of the plaintiff and against the defendant, that the defendant was negligent and the plaintiff was not, then you will proceed further, and the next step will be to find what her damages are. years. riving at what might be the average life of this plaintiff according to this table. The figures are not to be taken as positively establishing the fact that the plaintiff will live to the age of the average, or thirty-eight and three-quarter She may live so long, or die to-morrow. The continuation of her life depends largely on the conditions of her health, physical condition and habits of the individual and of his or her acts and conHer damages, so far as she is entitled an assistance to the jury in arriving at duct. The table is only to be taken as to recover, if anything, is that she has the future disability; but for the damages been unable to earn a living since the ac- of the husband for the use of her services cident and do her work that the evidence they were only admitted in reference shows she was capable of performing be- to her own case-the jury will arrive as fore the accident in the way of a seam- best they can at the time which her husstress, and any permanent injury that band, if they find for the plaintiff, will was inflicted, and the pain and suffering be deprived of her services; also what he * * * * she had at the time and since that time. For her loss of earning power which is has expended and what he is liable for equivalent to what I stated, her occupa- on account of her nursing and treatment tion as a seamstress, if you believe she by the physicians, the purchase of medi |