Where a lease of a coal mine and improvements, exclusive of appliances for moving coal, recites that all repairs are to be made by lessees, and any improvements made by them are to remain at its expiration, they cannot be restrained from removing a hauling system, introduced instead of other appliances for removing coal, as the agreement relates to the things leased, which were to be kept in repair, and to which improvements were to be added.

Appeals from court of common pleas, Blair county.

Bill by the Beech Creek Coal & Coke Company against James L. Mitchell and others to restrain defendants from removing certain improvements from leased premises. From

a decree both parties appeal. Reversed as to defendants' and dismissed as to plaintiff's appeal.

O. H. Hewit, for plaintiff. Greevy & Walters and Stevens, Owens & Pascoe, for defendants.

FELL, J. These are cross appeals, and the questions raised relate to the right of the defendants, as lessees of a coal mine, to remove therefrom certain machinery and equipments used by them in operating the mine. The plaintiff leased to the defendants the "Lemon seam of coal, fifty coke ovens, and improvements," and sold to them the mules, mine or coal wagons, mine rails, and tools which were in use in the mine at the date of the lease. The fourth clause of the lease, which gives. rise to the questions in dispute, is as follows: "All repairs to coke ovens, mines, and sidings to be made at the expense of the said parties of the second part [the lessees], and any improvements made by the said parties of the second part to remain at the expiration of the lease." In the seventh clause it is stated, "This lease does not include mules, mine or coal cars, powder, mine rails, and tools." Soon after the defendants went into possession, they abandoned the use of mules, and introduced what is known as the "Rope Haulage System." The stock of cars, rails, and tools purchased of the plaintiff was increased from time to time as the operation of the mine required. During the term the de

fendants made a new slope and tipple, and erected an engine and boiler house, a blacksmith shop, and barn, and put down a railroad siding, at an aggregate cost of $18,500. They concede that the additions last named are improvements, within the meaning of the fourth clause of the lease, and they make no claim to them. But they claim the right to remove the appliances which constitute the haulage system, together with the cars, mine rails, and tools. Of this claim they gave the plaintiff notice, and a bill was filed by it to prevent their removal. On a motion for a preliminary injunction a decree was entered, permitting the removal of the cars, rails, and tools, but restraining the defendants from removing the haulage system. By agreement of the parties, this decree was treated as a final decree, and from it both parties appealed.

The exact nature of the appliances introduced by the defendants for the purpose of removing coal from the mine, as a substitute for mule power, does not appear in the testimony or findings, but it is agreed that they are such trade fixtures as a tenant may remove during the term unless restricted by the lease. The plaintiff's claim is based wholly on the clause of the lease which provides that improvements made on the property shall remain at the expiration of the term. The lease makes a clear distinction between permanent improvements to the real estate and the mere appliances for operating the mine and removing the coal; and, inferentially at least, it defines the improvements which are to remain as the property of the lessor. The things leased are the mine, the coke ovens, and the improvements. These are to be kept in repair, and improvements made are to remain. Excluded from this class, by direct expressions, are mules, mine or coal wagons, rails, and tools, the appliances used in removing the coal. These were not leased, but sold. The agreement that improvements are to remain is in connection with the covenant to repair, and relates to the things leased, which are to be kept in repair, and to which improvements may be added. It has no connection in the lease with the things to be supplied by the lessees, and no apparent relation to them. It is very clear that it was not intended to apply to the mules, wagons, rails, and tools sold, or to others subsequently bought by the lessees. The haulage system is a modern improvement, which takes the place of mule power. It is an appliance which can be removed without injury to the land, and used in another mine. It was not in general use when the lease was made, and its introduction was not contemplated by either party. Considering the whole lease, we do not think that it comes within the class of improvements which the lessees agreed not to remove. The decree dissolving the injunction as to cars, powder, rails, and tools was clearly right. It should have extended further, and included the haulage system.

WILLS-LEGACIES-TRUSTEE-FRAUD.

1. Under a will devising testator's land to his two sons, also naming them as executors, but desiring them to pay to each of his four daughters a sum equal to one-sixth of the value of the coal under the lands, the executors to have power to carry out such provision, by selling the coal, if they so desired, the daughters take no interest in the coal, but merely a money legacy, to be determined by the value of the coal; so that the sons, as owners of the land, occupy no fiduciary relation to their sisters, but yet, as executors, they are so far in a trust relation that the rules as to transactions between trustee and cestui que trust apply, even before the will is proved.

2. Where testator devises his land to his two sons, naming them as executors, and desires them to pay to each of his four daughters onesixth of the value of the coal under the land, an agreement between the sons and daughters, fixing a value on the coal, as regards two of the daughters, will not be disturbed, notwithstanding the trust relation of the sons as executors, and the fact that the shares were fixed at $13,000, while four years later, at an unprecedentedly high price, they sold for $15,500; the daughters having understood the agreement, and not having objected thereto till after such sale, the sons having made no misrepresentations, and the evidence being evenly balanced as to whether they had any knowledge of the value of the coal, which they did not disclose.

ty.

Appeal from orphans' court, Fayette coun

In the matter of the estate of Isaac Brownfield, deceased. From decrees confirming reports of the auditor, passing on the accounts of William W. Brownfield and another, executors, they appeal individually. Reversed.

Edward Campbell, for appellants. S. E. Ewing and Geo. H. Lepper, for appellees.

MITCHELL, J. The testator devised his land to his two sons, also naming them as executors, but desired them "to pay to each of my daughters, Jane, Malinda, Elizabeth, and Anna Crossland, a sum of money equal to the sixth part of the value of the coal under all my lands; my executors to have power to carry out this provision of this, my will, by selling, if necessary, the whole or any part of the said coal, if they should consider that the best way to carry the same into effect, but this does not require them to sell the same unless they wish to do so." The effect of this provision, as correctly held by the learned auditor and court below, was not to give the daughters any estate or interest in the coal, but merely a money legacy, the amount of which was to be determined by the value of the coal. The moment that value was liquidated in any valid way, the coal ceased to be

a factor in the matter. And the value was: to be estimated as of the date of the will or of testator's death, which was so soon after as to be for this purpose contemporaneous. There was no direction to sell, or obligation on the part of the executors to do so. The power to sell was merely a tentative mode of fixing the value, suggested by the testator, but left entirely to the discretion of the executors. The testator died in September, 1890. In November the six children met, and made an amicable division of the personal property which the will had left to them in equal shares, and in March, 1891, they met again, and executed a formal sealed agreement of liquidation of the value of the coal, so far as it affected the amount of the legacies to Malinda Brownfield and Anna B. Crossland, two of the daughters. The validity of this agreement is the main question in the case. The auditor found, as facts, that the agreement was executed by the two daughters now objecting with knowledge of its contents; that they had opportunity to examine and consider it before signing; that the accountants, the two sons, made no attempt to conceal the effect of the agreement from their sisters, but advised them to obtain outside advice; that they did not in any way misrepresent the amount of coal, but that one of them had information upon that subject which he did not communicate; and that, such information being essential to the safe entry into the agreement, the failure to communicate it, under the confidential and fiduciary relations between the parties, rendered the agreement invalid. He thereupon proceeded to take testimony as to the amount and value of the coal, and to surcharge the accountants with this valuation in place of that fixed by the agreement.

The relation of the parties was somewhat exceptional. The sons were devisees of the land, including the coal, and, as the daughters had no estate, title, or interest in the coal, but merely a claim for money against the executors, depending upon the value of the coal, the sons, as owners of the land, occupied no fiduciary relation at all to their sisters, and were entitled to deal on this subject at arm's length. But the sons were also named by the testator as executors, though the will had not yet been proved, nor was it offered for probate till three years later, at the instance of the purchaser of the coal. The reasons for this delay are not very clear, but it was certainly in pursuance of an amicable family understanding, if not of positive agreement. It is argued by the present appellants that, not having yet taken out letters testamentary, they were not in any relation of trust or confidence at all at that time. the auditor was clearly right in holding that the parties dealt on the understanding that the will gave the sons, as executors, the power and duty to ascertain and fix the value of the coal as the measure of the daughters' legacies, and they were therefore so far in a

But

trust relation that the equity rules as to transactions between trustee and cestui que trust had a bearing on the case. But he erred in applying the rule too strictly. There was no purchase of trust property by the trustee, no strict relation of trust which gave either superior knowledge or power of moral coercion,

but there was a confidential relation requiring entire good faith. Not only was this clearly present, but the valuation is shown to have been a reasonably fair one by that which the auditor himself arrived at. The agreement put the valuation at $13,000 for each share. The auditor, after full adverse investigation, with the light of four years' subsequent developments in the coal business, put it at $15,500, coupled with the admission that "this is a higher price than any of the coal in the neighborhood had sold for up to that

The agreement was entered into as a family settlement, was carried out without objection for four years, and until the sale of the coal, under an unprecedented rise in price, made the objectors regret that they had not waited, as the others had, to realize on their legacies. In the entire absence of fraud or any act of bad faith, and in view of the clear proof of knowledge by the objectors before execution, the double position of the appellants, one of which carried no duty at all of disclosure of facts, the very evenly balanced testimony whether or not the brothers had any undisclosed knowledge, the evidence that the valuation was in fact a fair one, and the very strong presumption in favor of a family settlement unimpeached for four years, it was error to set aside the agreement of 1891. The facts of this case, as already said, are exceptional, and no close precedent has been found; but Grim's Appeal, 105 Pa. St. 375, is analogous, and the principles, as applied there, are applicable here. The agreement of 1891 being valid, and the proper basis of the account, the interest must, of course, be adjusted in accordance therewith, and not at 6 per cent. prior to the sale, as the auditor calculated it. The counsel fees claimed by the accountants appear to us moderate, but they have been slightly reduced by the auditor and the court, and we are without evidence on which we can say there was error in this respect. The decree is reversed, and the account directed to be restated in accordance with this opinion. Costs to be paid by the appellees.

In re BROWNFIELD'S ESTATE.
Appeal of CROSSLAND.

(Supreme Court of Pennsylvania. Oct. 6,

1899.) WILL-TRUST.

A legacy to testator's daughter of one-sixth the value of coal under land devised to his sons, named as executors, with direction to his executors to invest it in some safe way and etain control of it, allowing her the use of it, or, if the investment is interest bearing, to pay

MITCHELL, J. The only question involved in this appeal not discussed and determined in Appeal of Brownfield (opinion filed herewith) 44 Atl. 246, is raised by the assignment of error to the finding of the auditor that the legacy to appellant was not absolute, but in trust. The will of the testator gave, inter alia, a legacy to this appellant equal to one-sixth the value of the coal under the land devised to his sons, and provided: "I direct my executors to invest in some safe way the bequest of my daughter Anna, and to retain control of the same, allowing her the use of the same, or, if the said investment should be an interest or dividend bearing investment, to pay over to her semiannually the interest thereof during her life, and, if she should die without leaving lawful issue surviving her," then over, etc., and, if issue, then to hold until they should reach full age, etc. The trust thus imposed by the testator was not disturbed in any way by the agreement of the children in March, 1891. It could not have been, for the will was not attacked in any way, and its provisions are clear. But the agreement had no such object. It was merely to liquidate the amount of the legacy, which the will made dependent on the value of the coal. This was in affirmance, not in antagonism, to the will, and in no way af fected the trust. Appeal dismissed, at the costs of appellant.

NELSON v. STEEN. (Supreme Court of Pennsylvania. Oct. 6, 1899.)

TRESPASS-FRAUD-EVIDENCE.

A miner employed at a certain amount per ton for coal mined cannot recover damages in trespass for fraud, in that scales were used which did not show the full weight of the coal, on mere insinuations and suspicions, but there must be clear and satisfactory evidence that the employer knowingly and fraudulently used false weights with intent to cheat and defraud the miners.

Appeal from court of common pleas, Allegheny county.

Action by George Nelson against Thomas D. Steen. Judgment for defendant, and plaintiff appeals. Affirmed.

Thos. M. & Rody P. Marshall, for appellant. J. Charles Dicken, for appellee.

MCCOLLUM, J. This suit is based on an alleged fraud of the defendant upon his employés engaged in mining coal under an agreement which allowed to each employé 69 cents for every 2,200 pounds of screened lump coal which he mined. It was understood by the parties to this agreement that no more than 2,200 pounds of coal, when screened, should be placed on any car or pit wagon of the defendant used in bringing the coal, when mined, to the surface; and that, if more coal was loaded into such car or pit wagon, the miner would not receive pay for the excess. The 2,200 pounds was the limit of the weight of the scales, which, when in use, were open to the inspection of any person interested in the operation of them. The amount due each miner for his labor under the agreement was paid every two weeks, and he then gave his receipt for it. The miners made no complaint to the defendant of inaccuracy in weights, and it was never intimated to him that there was such inaccuracy, until July 5, 1894, when Lattimer, the miners' check weigher, alleged that he had discovered an inaccuracy in the weights prejudicial to the interests of the defendant's employés. Upon this allegation James Blick, the mine inspector, whose duty it was to inspect the scales, was sent for. He promptly responded to the call, and upon examination and inspection of the scales he found them to be correct. About two weeks after his first examination he was called by Lattimer to make another inspection, which resulted in their conclusion that the scales were incorrect. The plaintiff in the case under consideration instituted an action of trespass for the recovery of $2,500 to compensate him for the loss he claims to have sustained by the alleged fraudulent act of the defendant. What he would have been entitled to if he had sustained the action instituted as above stated was 69 cents on every 2,200 pounds of coal which he had mined and had not been paid for. If his own account of the work he had done for the defendant in mining coal from the last of May, 1893, until the 24th of July, 1894, is accepted as true, the amount due him from the defendant for the coal he mined in excess of the coal he was paid for would be less than $90, and probably not more than half that sum. His testimony relating to this subject was unsatisfactory, because he was unable to furnish any memorandum or data in corroboration of it, or to specify from recollection what portion of the time between the last of May, 1893, and the 24th of July, 1894, he was engaged in mining coal for the defendant, and during what portion of it he was out of employment. When the testimony on the part of the plaintiff was closed, a motion was made for a compulsory nonsuit on the ground that it was not shown that the defendant knowingly and fraudulently made use of false weights. The nonsuit was granted, and the court, upon full hearing and consideration, refused to take it

off. It is obvious that under the pleadings in the case there could be no recovery of the sum which the plaintiff alleged was due to him from the defendant without clear and satisfactory evidence that the latter knowingly and fraudulently used false weights with intent to cheat and defraud him and his co-employés. In the absence of such evidence, it was the plain duty of the court to enter and affirm the nonsuit. Insinuations, and suspicions are not evidence, and, strictly speaking, they have no place in it. They certainly do not constitute a proper basis for a verdict in accordance with them. In this case, however, they appear to have been regarded by the plaintiff and his supporters as important factors and influential aids in the prosecution of his claim. That the miners employed by the defendant during the period defined in the plaintiff's statement were suspicious that their employer was cheating and defrauding them by the use of false weights, while they were regularly receiving from him full payment of the amounts they supposed they were respectively entitled to for their work the two preceding weeks, and expressed no dissatisfaction with the treatment they received, is, to say the least of it, a singular circumstance. Another circumstance worthy of note is that this suit was not brought by the plaintiff until two years and four months after the defendant ceased to employ him. Aside from these and other circumstances mentioned herein, a careful examination of the evidence has convinced us that the court did not err in entering the nonsuit. Judgment affirmed.

WALL v. ROYAL SOC. OF GOOD FEL LOWS. (Supreme Court of Pennsylvania. Oct. 6, 1899.)

APPEAL-FINDINGS.

Verdict for plaintiff on a certificate of insurance, right to which depends on whether insured falsely answered questions in the application, will not be disturbed, there being a conflict of reputable witnesses as to the truth or falsity thereof.

Appeal from court of common pleas, Allegheny county.

Action by Ellen J. Wall against the Royal Society of Good Fellows. Judgment for plaintiff. Defendant appeals. Affirmed.

S. A. Will and Lev. McQuiston, for appellant. William Yost, for appellee.

MCCOLLUM, J. The plaintiff has a right to the money mentioned in the certificate, provided the answers of her son, Edward Wall, to the questions addressed to him in connection with his application for insurance, are true answers. Prima facie the answers are correct, and the burden of showing their falsity rests on the defendant company. The principal questions to which it is alleged false answers are made appear in the first, second,

third, fourth, and fifth assignments. The question addressed to the applicant in the first is as follows, "When last attended by a physician, and for what cause?" and the answer to it is, "One year ago." The question addressed to him in the other assignments is, "Have any or either of your parents, brothers, sisters, grandparents, uncles, aunts, or cousins been afflicted with consumption or with pulmonary or any hereditary disease?" and the answer to it is, "No." The answer to the question contained in the first assignment is characterized by the company as false, and the testimony of Dr. L. C. Wiggins is relied on to sustain the accusation. The answer to the question included in the other assignments is declared by the company to be untrue, and the testimony relied on to support the declaration is that of Dr. J. A. Miller, Dr. J. B. Black, and Dr. J. L. Penny. The testimony of Dr. Wiggins is that he attended Edward Wall professionally several times during the year preceding his application for insurance, and the testimony of Dr. Black is that Johanna Hickey, an aunt of Edward Wall, died of consumption in December, 1891. Dr. Miller testified, in substance, that he was called in 1892 to examine Thomas Hickey and Mary Hickey, cousins of Edward Wall, and upon his examination of them he was of the opinion that they had consumption, but he did not express this opinion to them or any one else. His call was brief, and not repeated. It must be conceded that the testimony of Wiggins, Miller, and Black has a tendency to discredit the answers to the questions contained in the five assignments. But there is nothing in the testimony of Penny which discredits them. On the contrary, his testimony has a decided tendency to maintain their integrity. He was called by the plaintiff in rebuttal, and it is a perversion of his testimony to attribute to it the effect claimed for it in the fifth assign

In addition to the three physicians who testified in behalf of the company as above stated, we note that W. R. Spooner, the company's premier, testified that he had an interview with the plaintiff, in which she made admissions in accordance with the contention of the company and fatal to her demand upon it. He conceded, however, that her husband was present at, and participated in, these interviews. In this connection, it is proper to state that Spooner's testimony respecting the alleged admissions of the plaintiff is directly opposed to the testimony of her husband in rebuttal. The testimony of the four witnesses called to sustain the company's contention is contradicted by the testimony of the sixteen witnesses called by the plaintiff in answer to it. Four of these witnesses are reputable physicians, qualified to testify intelligently and without prejudice respecting the matters to which their attention was called. Two of them examined Edward Wall in 1892 with reference to an application for insurance, and the conclusion they

reached was that he was then in good health and a good risk. The examinations were made on the 4th of June and the 14th of November. The testimony of the remaining twelve witnesses in rebuttal, together with that of the four physicians referred to, meets every phase of the company's contention, and constitutes, if credited, a complete answer to it. All the questions in the case are questions of fact, and determinable by a jury upon the evidence. The questions and the evidence were fairly and clearly presented to the jury by the learned court below, and we discover no error in the instructions relating to either. We therefore overrule all the assignments of error. Judgment affirmed.

RUSHTON et al. v. CITY OF ALLEGHENY et al.

(Supreme Court of Pennsylvania. Oct. 6, 1899.)

SIDEWALKS-COAL HOLE-NEGLIGENCE.

There is no liability for injury to a pedestrian from falling into a coal hole in a sidewalk, authorized by the city, by reason of the tipping of the cover, it being, in its location and construction, like the great majority of coal holes in the city, such pedestrian having passed over it twice a week for five years, there having been no injury to or complaint of defect from the hundreds who passed over it daily, and the only things offered to show negligence being that the cover, which was two feet wide, was sunk one-half inch on one side and raised one-half inch on the other, that a piece was broken off the frame, the break, however, not extending to the flange which holds the cover in place, and that the cover was not bolted down, but was afterwards so bolted.

Appeal from court of common pleas, Allegheny county.

husband

Action by Mary Rushton and against the city of Allegheny and others. Judgment for defendants. Plaintiffs appeal. Affirmed.

The opinion of the court below on refusing to take off the nonsuit, is as follows: "It is undoubtedly true that a nuisance in a public highway is none the less a nuisance because many others like it are maintained. We cannot, however, in this case, get to the point where this consideration aids us, without begging the entire question at issue. Of course, one who maintains such a nuisance is liable in damages to a party specially injured by it. If, then, we hold a coal-vault grating to be a nuisance per se, we decide the case in plaintiffs' favor without more. But it is a wellknown fact, and is admitted by plaintiffs' witnesses, that such gratings are permitted by the municipal authorities, and are in general use; and it is also well known that such accidents as that out of which this suit grows do not often occur. Doubtless, when a party is permitted to make an opening like this in a highway, he should be held to a high degree of care in maintaining it in safe condition; but we are of the opinion that, in this state at least, the law is that there must be