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Schaeffer v. Hoffman, 113 Pa. 1, 4 Atl. 39: | The learned court below entered judgment "The decisions of this court apply very strict for want of a sufficient affidavit of de rules to acknowledgments to take a case out fense, and the defendant has taken this apof the statute of limitations. We mean to peal. adhere to them in letter and spirit." The acknowledgment depended upon was not sufficient under the authorities to toll the stat-the payee, and took the notes after maturity.

ute.

The assignments of error are overruled, and the decree is affirmed at the cost of the appellant.

(228 Pa. 42)

SHOWELL et al. v. BARR. (Supreme Court of Pennsylvania. April 18, 1910.)

1. BILLS AND NOTES (§ 480*)-ACTIONS-SUFFICIENCY OF AFFIDAVIT OF DEFENSE.

We do not think this is a case for summary Judgment. The plaintiff is the indorsee of

The statement does not aver that the plaintiff is a holder in good faith and for value, and that at the time the notes were negotiated he had no notice of any infirmity in the instrument. The affidavit of defense avers failure of consideration, caused by certain acts and conduct of the payee in violation of his express agreement inducing the execution of the notes. The defendant further avers that after the maturity of the notes in suit they were "put into the hands of plaintiffs under a collusive arrangement to assist said Hall (payee) in collecting said notes contrary to the defendant's rights." While the affidavit certainly lacks clearness and conciseness, we think, under the plead

In an action on notes by the indorsee of the payee who took them after maturity, where the statement does not aver that plaintiff is a holder in good faith and for value, and that when the notes were negotiated he had no notice of any infirmity therein, an affidavit of defense averring failure of consideration beings, it is sufficient to send the case to a jury cause of certain acts of the payee in violation of his express agreement inducing execution of the notes, and that the notes were put into the hands of plaintiff under a collusive agreement to assist the payee in collecting them contrary to defendant's rights, is sufficient.

[Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 1526, 1527; Dec. Dig. § 480.*]

VALIDITY

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2. BILLS AND NOTES (§ 107*)
NOTES "GIVEN FOR PATENT RIGHT."
Notes given in payment for the stock of a
corporation to which the payee had assigned
patent rights were not given for a patent right
within Act April 12, 1872 (P. L. 60), requiring
that such a note have the words "Given for a
patent right" written across its face.

[Ed. Note. For other cases, see Bills and Notes, Cent. Dig. § 227; Dec. Dig. § 107.*] Appeal from Court of Common Pleas, Philadelphia County.

Action by E. B. Showell and others against J. H. C. Barr. From an order making absolute a rule for judgment for want of a sufficient affidavit of defense, defendant appeals. Reversed, with a procedendo.

The notes in suit were two collateral promissory notes each for $1,250. The plaintiffs were the indorsees of the payee. The defendant was the maker. It appeared from the affidavit of defense that the notes in suit were given in payment for the stock of a corporation to which Harry F. Hall, the payee, had assigned certain patents.

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

C. Oscar Beasley, for appellant. Bernard F. Owens and Joseph Levy, for appellees.

MESTREZAT, J. This is an action of assumpsit brought by the holder against the maker to recover the debt and interest alleged to be due on two promissory notes.

so that the issue may be determined after a full development of all the facts. The notes were not given for a patent right within contemplation of the act of April 12, 1872 (P. L. 60), and the averment in the affidavit in reference thereto is without merit as a defense. The judgment is reversed, with a procedendo.

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1. TRIAL ($ 133*)-STATEMENTS OF COUNSELCOMMENTS ON EVIDENCE.

Where, on appeal from an award of the jury of view, an expert for defendant was asked on cross-examination as to an alleged statement to third persons that $4,500 was a proper compensation, but denied that he made the remark, a declaration by counsel for plaintiff in his address to the jury that the credibility of such witness was impeached by his admission that he might have said $4,500 was not excessive is ground for reversal, though the court warned the jury to disregard it. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 316; Dec. Dig. § 133.*]

2. TRIAL (§ 258*) — INSTRUCTIONS - REFUSAL OF POINT.

Where the point states material facts not sustained by any evidence on the record, and the rule of the court requires that all requests must be framed so that they can be answered by a simple affirmation or denial, a refusal to affirm the point is proper.

[Ed. Note. For other cases, see Trial, Cent. Dig. 88 646-650; Dec. Dig. § 258.*]

Appeal from Court of Common Pleas, Monroe County.

Action by James S. Fisher against the Delaware, Lackawanna & Western Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.

Argued before FELL, C. J., and EL-way Co., 225 Pa. 419, 74 Atl. 344. There is KIN, BROWN, STEWART, and MOSCH- no way of telling whether or not the effort ZISKER, JJ.

A. Mitchell Palmer and C. R. Bensinger, for appellant. F. B. Holmes and R. L. Burnett, for appellee.

MOSCHZISKER, J. A jury of view awarded the plaintiff $4,570 damages for land condemned by the defendant to widen and straighten its railroad. An appeal was taken to the common pleas. On the trial of this appeal, a real estate expert witness for the defendant placed the damages at $1,500. On cross-examination, he was asked by counsel for the plaintiff as to a supposed conversation with certain third persons in which he was alleged to have stated that $4,500 was proper compensation for the land taken. The witness did not admit the imputation as to the larger figures, and at no time stated that he understood such a sum to be the amount awarded by the viewers. In his closing address to the jury, counsel for plaintiff, while commenting upon this witness, declared that his credibility had been impeached by reason of the fact he had admitted that in discussing the award of the viewers with certain third persons "he might have said that the sum of $4,500 awarded by the viewers was not excessive." Counsel for the defendant immediately took exception to these remarks on the ground that they constituted a statement to the jury of the amount of the award of the viewers; and a motion was made to withdraw a juror and continue the case, which was refused and an exception granted. The first three assignments of error go to this ruling, and to the remarks of the trial judge in warning the jury not to be influenced by counsel's reference to the award of the viewers.

of the trial judge to efface the harmful effect of counsel's remarks was successful. It may well be, in view of the fact that the verdict rendered closely approximates the award of the viewers, that the effort in this behalf merely accentuated the harm done. In the appropriate language of Chief Justice Tilghman in Shaeffer v. Kreitzer, supra: "It may seem at first view to be a matter not worth contending for, because the jury was told that the report ought not to have the least weight as evidence. But to those who have had experience in jury trials it will be evident that the principle involved in this point is of considerable importance. Impressions once made are not easily erased, and, when the jury have been permitted to hear that men for whose character they entertain a respect have decided in a certain way it will be very apt to influence their own decision, in spite of all the caution they may receive from the court." We are of opinion that error was committed in the refusal to withdraw a juror and continue the cause, which was not cured by the trial judge's explanation to the jury.

The only other assignment which requires consideration is one to the effect that the court erred in refusing to affirm defendant's point: "For the original appropriation of the strip of land forty feet wide, and all damages resulting to the Fisher property by reason of the appropriation and using thereof for railroad purposes, the owner of the land has been fully compensated and the injury to the said property, by reason of any use of said original strip cannot be considered by the jury in this action." Where a court is requested, in apt and proper time, to answer a point containing instructions which are correct in form and substance and When a case is heard on an appeal from an applicable to the law and facts of the case, award of viewers, the trial must be had in it ought to give a specific answer, unless the the same manner as if the cause had never matter has been substantially covered in been passed upon by another tribunal, and the general charge. The thought intended in the jurors should not be subjected to the in- the point submitted was applicable to the fluence which the knowledge of a prior case and not sufficiently covered in the award of viewers would be almost sure to charge, but we fail to find any evidence uphave upon their minds. When counsel of- on the record to show that the original apfends against this rule, it must be regarded propriation was of a strip of land forty feet as "an invitation to find a verdict upon false wide, or to give us any light upon the paygrounds," and on motion the trial judgement of damages. In view of the rule of the ought to promptly withdraw a juror. This court below that all requests must be so is within the principle laid down in our cas- framed that they can be answered by a simes at an early date and consistently follow-ple affirmation or negation, we cannot say ed to the present time. Shaeffer v. Kreitzer, that there was error in the refusal to affirm 6 Bin. 430; Wagner v. Hazle Township, 215 the point as drawn. Pa. 219, 64 Atl. 405; Hollis v. Glass Co., 220 The first three assignments of error are Pa. 49, 69 Atl. 55; Quinn v. P. R. T. Co., sustained, and the judgment is reversed with 224 Pa. 162, 73 Atl. 319; Hollinger v. Rail-a venire facias de novo.

(228 Pa. 52)

FIDELITY TRUST CO. v. BOBLOSKI.
(Supreme Court of Pennsylvania. April 18,
1910.)

1. WILLS (88 443, 597*)-CONSTRUCTION.
In case of doubt, a will should be con-
strued in favor of the first, rather than the
second, taker, of a general or primary intent
rather than a particular or secondary one, and,
where a devisee is subjected to a charge or bur-
den, doubts as to the quantum of the estate
should be resolved in his favor.

[Ed. Note. For other cases, see Wills, Cent. Dig. 88 960, 1319, 1324; Dec. Dig. 88 443, 597.*]

2. WILLS (§ 597*)-ESTATES CREATED INDEF

INITE DEVISE COUPLED WITH CHARGE.

An indefinite devise coupled with a charge on the devisee passes a fee.

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 1324; Dec. Dig. § 597,*]

3. WILLS (8 602*) — CONSTRUCTION CREATED DEFEASIBLE FEE.

ESTATES

A will directed that testator's widow should have possession of, enjoy, and administrate during the time she might remain a widow all of testator's estate, and directed that she should assist the children when they should become of age to procure the means best adapted for their future welfare and position, and that, in the event of her remarrying, all of testator's estate should be divided between her and the children, according to the laws of the commonwealth. Held, that the widow took a defeasible fee, which became absolute upon her death without remarriage.

[Ed. Note. For other cases, see Wills, Cent. Dig. 88 1351-1359; Dec. Dig. § 602.*]

Appeal from Court of Common Pleas, Philadelphia County.

Action by the Fidelity Trust Company, committee of the estate of Maria Louisa Hoffman, against Moses Bobloski. Judgment for defendant, and plaintiff appeals. Af

firmed.

loan without the consent of Executors hereinafter named.

"II. I wish and direct that my said wife shall assist to the best of her ability, our children, when they become of age, to procure the ways and means best adapted for their future welfare and position to secure their own means.

"III. At and of the event of my said wife again becoming married, all my real and personal estate shall be divided between herself and our children, according to the laws of this commonwealth, and a guardian shall be then not of age. appointed for such of our children as are

"IV. To assist my wife in the execution of my real and personal estate as well as in the execution of my last will and Testament, I herewith appoint herself, Peter Kohlhas and my brother P. C. Hoffman all of the City of Philadelphia State of Pennsylvania as Executors of and to this my last will and testament."

The testator, Jacob Hoffman, died seised of The court below held certain real estate. that the widow took a fee in this real estate defeasible upon her remarriage. The question is not entirely free from doubt, but we are convinced that this is the correct interpretation of the will. In case of doubt, the construction of a will should be in favor of the first rather than of the second taker, of a general or primary intent rather than of a particular or secondary one; and, where a devisee is subjected to a charge or burden, doubts as to the quantum of the estate should be resolved in his favor. Jackson's Estate, 179 Pa. 77, 36 Atl. 156.

The testator refers to the estate as "our joint property," and shows an intention to Argued before BROWN, MESTREZAT, substitute his wife for himself in relation POTTER, ELKIN, and MOSCHZISKER, JJ. thereto. She appears the first and principal H. Gordon McCouch and George S. Mun-object of his bounty, and his general or prison, for appellant. John Marshall Gest, for mary intent seems to be to give her the propappellee.

MOSCHZISKER, J. The only question raised by this appeal concerns the quantum of the estate taken by the widow under the following will:

erty as he had it, trusting her to take care of their children. His expression of confidence that his wife would educate the children, and his direction that she should assist them when they became of age "to procure the ways and means best adapted for their future welfare and position to secure their "I. Fully convinced that my wife Philippina own means," tend to demonstrate this pri (née Doll) is able as well as willing, after mary intent, and go far to show a purpose to my decease to instruct and educate our chil- give her an estate in fee. It is a well-settled dren and to take care and administer our rule that an indefinite devise coupled with a joint property, just as good as if I was still charge on the devisee passes a fee. In Lloyd living I wish and direct that my said wife v. Jackson, L. R. 1 Q. B. Cases, 571, s. c. shall take possession and enjoy and admin- L. R., 2 Q. B. Cases, 269 (before the wills istrate for the time that she remains a wid- act), the testator directed: "I give and beow all of my real and personal estate and queath to my beloved wife, all and singular effects including the shares of the different my lands, messuages and tenements, by her Building Associations to which I do belong freely to be possessed and enjoyed, all of my or might hereafter belong, Subject however children to be educated and settled in busito the condition that she shall not sell, dis-ness according to my wife's discretion." And pose of or contract any debt or liabilities of it was held that the language indicated au and on any of my said real estate or city intention that the wife should take such an

estate as would enable her to carry out the | testator's children according to the intestate wishes of the testator, and that she took an estate in fee. This view was sustained on appeal by the exchequer chamber, L. R. 2 Q. B. Cases, 269; Kelly, Chief Baron, saying: "Whether this duty be obligatory or whether it be discretionary, we are of opinion that the effect of this part of the will is to confer the fee simple and not merely an estate for life." | The rule laid down in this English case has always obtained in Pennsylvania. Burkart v. Bucher, 2 Bin. 455, 4 Am. Dec. 457; Coane v. Parmentier, 10 Pa. 72; Fahrney v. Holsinger, 65 Pa. 388; Jackson's Est., 179 Pa. 77, 36 Atl. 156. "Our cases all hold that a devise generally or indefinitely, with power of disposition, carries a fee." Witmer v. Delone, 225 Pa. 450, 74 Atl. 347. The present will, by clear implication, gives to the widow the power to sell and dispose of the estate. The executors are expressly appointed "to assist my wife in the execution of my real and personal estate." They are given no interest in or power of sale over the real estate, and their function respecting it is made advisory to the widow. The direction that the widow could not sell or dispose of the real estate or city loans without the consent of her coexecutors cannot serve to defeat the fee.

The words of the devise, taken in connection with the other parts of the will, are sufficient to vest a fee in the widow. In Snyder v. Baer, 144 Pa. 278, 22 Atl. 897, 13 L. R. A. 359, the words, "I direct that my beloved wife shall have and hold the property where I now reside," were held to carry a fee. In the present instance tue testator directs that his wife shall take possession of and enjoy all of his real and personal estate. In Campbell v. Carson, 12 Serg. & R. 54, we held that a devise to a wife of property "to be by her freely possessed and enjoyed" passed a fee: and this was before the act of April 8, 1833 (P. L. 249). "The act of 1833, changes the rule of construction by its command that 'All devises of real estate shall pass the whole estate of the testator in the premises devised * * * unless it appear by a devise over, or by words of limitation, or otherwise in the will, that the testator intended to devise a less estate.' Starting with this statutory presumption, the burden of proof is now upon those who claim that a less estate was intended by the testator." Kiefel v. Keppler, 173 Pa. 181, 33 Atl. 1043. There is no devise over in the present will; nor does it appear by words of limitation or otherwise that the testator intended to give his wife an estate less than a fee. The fee given to the wife was not cut down to a life estate by the provision that she was to take possession and enjoy the estate "for the time that she remains a widow," or by the further provision that in the event of her marriage the estate was to be divided between herself and the

law. There are cases where provisions restricting a widow to the enjoyment of the property during widowhood have been held to limit the estate to her life, and others where the contrary has been ruled. It depends in each instance upon the intent to be gathered from the will as a whole. In Redding v. Rice, 171 Pa. 301, 33 Atl. 330, Mr. Justice Mitchell distinguished the former class of cases, particularly Cooper v. Pogue, 92 Pa. 254, 37 Am. Rep. 681, and Long v. Paul, 127 Pa. 456, 17 Atl. 988, 14 Am. St. Rep. 862, and truly said: "Precedents are of little value in the construction of wills, because, when used under different circumstances with different context, the same words may express different intentions." It was held in that case that a devise to the wife "as long as she remains my widow and if she should get married then she shall only be entitled to one-third in said property" gave the widow a fee, and, as she had not remarried, that a conveyance made by her vested an estate in the grantee which became indefeasible after her death. In Rohrbach v. Sanders, 212 Pa. 636, 62 Atl. 27, the devise was to a wife, "provided, however, that if my said wife should again marry then I give and devise the property before mentioned to my son," and it was held that the widow took a defeasible fee, which upon her death before marriage became an absolute fee simple. And in Scott v. Murray, 218 Pa. 186, 67 Atl. 47, we held that the words "so long as she remains my widow," annexed to the grant of a fee, did not indicate an intention to cut down the quantum of the estate.

In the present case there is sufficient in the will to show an intention that the widow should take a defeasible fee, and there is not enough to restrict the devise to an estate for life. The widow not having remarried, the fee became absolute upon her death, and the real estate in question passed under her will.

The assignments of error are overruled, and the judgment is affirmed.

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For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 76 A.-46

lectors the taxes shall be collected by the township treasurers of townships of the first class, who shall have all the powers, duties, and compensation of the collectors, is not special or local legislation within Const. art. 3, § 7, providing that no local or special laws respecting townships shall be passed.

[Ed. Note.-For other cases, see Statutes, Cent. Dig. § 102; Dec. Dig. § 93.*

For other definitions, see Words and Phrases, vol. 5, p. 4213; vol. 7, pp. 6577-6584; vol. 8, p. 7802.]

3. STATUTES ( 141*)-AMENDMENT-SETTING FORTH PROVISIONS AMENDED.

Act May 28, 1907 (P. L. 273), in providing that the township treasurer shall have the powers of the tax collector whose office was abolished in townships of the first class, is not violative of Const. art. 3, § 6, providing that no law shall be revised, amended, or the provision thereof extended or conferred by reference to its title, but so much thereof as is revived, etc., shall be re-enacted and published at length, the powers and duties of a tax collector being in no manner changed, the acts relating to the office and the duties thereof remaining the same, though the collector is called by a different name, and no act can be rendered unconstitutional by a section which makes no change whatever in the law, and which might have been omitted without any effect whatever.

[Ed. Note. For other cases, see Statutes, Cent. Dig. § 209; Dec. Dig. § 141.*] 4. OFFICERS (§ 100*)-CHANGING COMPENSA TION-VALIDITY OF ACT.

The persons who would be affected by Act May 28, 1907, having been elected after the passage thereof, it was not violative of Const. art. 3, § 13, providing that no law shall diminish the emoluments of a public officer during

his term.

[Ed. Note. For other cases, see Officers, Cent. Dig. 88 152-157; Dec. Dig. § 100.*] 5. STATUTES (§ 75*) LOCAL OB SPECIAL LAWS.

Prior to Act May 28, 1907 (P. L. 273), a general law abolishing the office of township tax collector in townships of the first class, there were local acts for two counties, which were the only counties having townships of the first class, and local acts giving to the county treasurer the right to collect city and county taxes. Act May 1, 1909 (P. L. 301), amended the repealing clause of the former act by providing that nothing therein contained should take away from or interfere with the powers conferred upon the treasurer of any county by existing laws in relation to the collection by the treasurer of city and county taxes. Held, that the act was an indirect attempt to revive local acts, violative of Const. art. 3, § 7, providing that no local or special laws respecting townships shall be passed.

[Ed. Note.-For other cases, see Statutes, Cent. Dig. 77; Dec. Dig. § 75.*]

.6. STATUTES (§ 75*)-LOCAL OR SPECIAL LAWS. The act was also violative of the section because an attempt to affect only a part of the townships of the first class as to a matter in which all first class townships have exactly the same interests.

273), relating to the collector of taxes in townships of the first class.

[Ed. Note.-For other cases, see Taxation, Cent. Dig. 1018; Dec. Dig. 545.*]

Appeal from Court of Common Pleas, Montgomery County.

Bills by William H. Murphey, Township Treasurer of Cheltenham Township, by John M. Harmer, Township Treasurer of Abington Township, and by Henry D. Cornman, Township Treasurer of Lower Merion Township, against William M. Hagginbotham, Treasurer of Montgomery County. Decrees for plaintiffs, and defendant appeals. Affirmed.

The facts appear in the following opinion by Swartz, P. J., in the common pleas in the case of Cornman v. Hagginbotham:

"This is a contest over the right to collect state and county taxes for 1909, in a township of the first class. Such right being claimed by the township treasurer of Lower Merion township, Montgomery county, and also by the county treasurer of said county.

"Findings of Fact.

"(1) Lower Merion township in the county of Montgomery is a township of the first class, since December 7, 1899.

"(2) Henry D. Cornman was duly elected and is acting as treasurer of said township, having been elected as treasurer at the general township election held in said township on the third Tuesday in February, 1909, for the term of three years.

"(3) That the defendant, William M. Hagginbotham, is the county treasurer of said county, having been duly elected at the general election held in said county, on November 5, 1907.

"(4) That the county commissioners of said county claiming to act under the provisions of the act of March 17, 1868 (P. L. 342), and the act of May 1, 1909 [P. L. 301], have issued to the said William M. Hagginbotham the duplicates for the state and county taxes levied or assessed in the said township of Lower Merion, and the said William M. Hagginbotham as such treasurer for the county of Montgomery, is proceeding to collect said taxes.

"Conclusions of Law.

"(1) The act of May 28, 1907 (P. L. 273), is not unconstitutional:

"(a) It is not special or local legislation within the meaning of section 7, art. 3, of the Constitution of Pennsylvania.

"(b) It does not offend against section 6,

[Ed. Note.-For other cases, see Statutes, art. 3, of the Constitution when it declares Cent. Dig. 77; Dec. Dig. § 75.*]

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that the township treasurer shall have the powers of the tax collector whose office was abolished in townships of the first class.

"(c) The act does not offend against section 13, art. 3, of the Constitution. It does

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