mother.

This is a bill to compel partition of certain real estate in the Fifth ward of the city of Pittsburgh, of which complainant avers he is the owner of an undivided one-half interest in common with his sister, Margaret Flynn Parker, one of the respondents; his title being derived by descent from Mrs. Catherine Flynn, their Charles and Catherine Flynn, the parents of complainant and Mrs. Parker, in 1884 and 1886 purchased the real estate sought to be partitioned from E. P. Jones; the deeds vesting a title in them by entireties. On February 4, 1905, Charles Flynn died, having made the will dated December 28, 1904, a copy of which is appended to respondents' answer. Catherine Flynn died January 22, 1911.

Complainant maintains that, as the title was taken by entireties, the will of Charles Flynn could not deprive his mother of her right to an absolute estate in the property upon the death of her husband, and that as she did not devise the property, as she had a right to do, it went in equal shares to the complainant and Mrs. Parker, the parties hereto.

In answer to this contention, it is alleged that the will of Charles Flynn was made by him at the request of his wife, and that she accepted the life estate given to her therein, and adopted its provisions as her own will, so far as a final disposition of the property was concerned; that she was therefore estopped; and that her son, the complainant, who claims through her as against the provisions of his father's will, is also estopped. It is apparent that, if the mother were not estopped by her accepting her husband's will, the complainant could not be prevented from asserting his right.

This case was decided once before, and the findings of fact, conclusions of law, and opinion of the court filed September 4, 1914, fully presented the basis for the decision which held that the complainant was entitled to partition.

The conclusions then reached by the court were chiefly based upon the theory that Catherine Flynn, through whom complainant claims title, was not aware of her rights when she procured or assented to the making of the will by her husband whereby her property was devised by him as though it were his own.

Before the disposition of the exceptions filed by respondents to the courts' findings of fact and conclusions of law, respondents presented a petition to the court asking for a rehearing upon the facts on the ground that important evidence bearing upon the question of such knowledge which had not been produced upon the original hearing would be presented if a rehearing were granted. Such rehearing was allowed, and on May 25, 1915, additional testimony was taken. In addition to the matters previously presented, the question of an accounting for the rentals derived from the property sought to be partitioned is now to be disposed of in the event that we determine that complainant is entitled to have partition of the property.

Discussion.

It is a significant fact that upon the original hearing Mrs. Parker, who at the rehearing testified to the most material fact now involved, that of her mother's knowledge of the nature of her title and of her rights as tenant by entireties, did not refer to such knowledge. It is also significant that Mrs. McElfresh, who at the rehearing testified to detailed knowledge on the part of Mrs. Flynn with regard to her title, which, if believed, would put an end to complainant's rights in this proceeding, did not at the original hearing give any such testimony, although she was examined at length and was a most willing

Parker, who was but seven years of age at the the nature of the title she was acquiring, we are time she heard Mr. Jones describe to her mother asked to believe that a child of such tender years would have sufficient intelligence and mental acuteness, not only to comprehend the nature of the title and the details of a technical presentation of it by Mr. Jones, but to remember all these facts and to be able to testify clearly upon them thirty-one years afterwards. This witness specically says that she recalls the conversation, and narrates it as follows: "I know when the property was bought that Mr. Jones explained to her, and I heard her explain to my father, that, if it was in both names, neither one would have to make a will at the death of the other, and it would go direct. He explained to her the fact that, if she had it made in her husband's name, on his death she would need a will and otherwise would only get a third of the property, the widow's rights, in case there was any children; and, if she had the title made in both names, it would go direct to the one that survived." Yet this witness upon the original hearing gave the testimony on which the court based its eighteenth finding of fact. As indicated by that finding, Mrs. Parker then testified: "Q. What did your mother say to him with regard to how he should make his will? A. Well, she said she knew my brother did not do what was right and she did not want him to come in and claim an equal share with her and I in the will." She also testified: "Q. What did she say about what you would have? A. Of course, she says: If he would come in, where do you or I get our share? What would keep me?"

It is true Mrs. McElfresh swears to the full knowledge of Mrs. Flynn as to her rights and title, but when the daughter, who would be reasonably supposed to know the most about it, presents positive proof, as above, that the mother did not know her rights, it is asking too much under all the circumstances to give credit to Mrs. McElfresh's story upon the subject.

So with regard to Mrs. McCoy's testimony. This witness was very specific and had full recollection as to the identical facts which she was had to refer to Mrs. Parker as to where she (the called upon to establish, but was uncertain and witness) lived at the date that she was called upon to go to wait upon Mrs. Flynn at the home did not have any recollection of material facts of the latter. Not only is it apparent that she which she claims she had, but it is also true that the mother, Mrs. Flynn, was so afflicted that she could make herself understood to but few persons, and that with great difficulty. Yet Mrs. McCoy would have us believe that she could express herself intelligently and consecutively, and that in her frequent conversations with Mrs. Flynn she obtained the knowledge of the facts of which she now speaks.

We are convinced that the findings of fact and conclusions of law upon which we based our original opinion in this case should not be changed in any material matter, and that nothing has been shown on behalf of the respondents which would warrant us in overthrowing our former judgment upon this case.

So far as the question of the rentals derived from the property is concerned, the amount of such rentals, and the amount to be awarded in the event of a decree in favor of the complainant, has been determined by a stipulation between the parties. The only question left open for discussion as to such rentals is whether or not Mrs. Parker should be entitled to commission on the rentals as compensation for her services in connection with the matter.

While we are convinced that complainant is entitled to share in the estate with his sister, Mrs. Parker, and that every effort has been

obtaining his rights, yet, as far as the actual administration of the property is concerned, she apparently has been faithful and efficient. We therefore do not assent to the proposition as presented by attorneys for complainant that Mrs. Parker should be deprived of all compensation.

Findings of Fact.

The court hereby adopts, as findings of fact pertinent to this cause upon rehearing, findings of fact filed September 4, 1914, numbered "First" to "Nineteenth," both inclusive, except Nos. "Fifteenth," "Sixteenth," and "Seventeenth."

New or Modified Findings of Fact. First. In view of the testimony of Dr. Vaux upon rehearing that Catherine Flynn at and before the time of making the will in evidence was suffering from softening of the brain, original finding of fact "Fifteenth" is modified by adding thereto the following: She had mental power to understand her ordinary domestic and business affairs, but did not have power to grasp and understand the nature and character of her title as a tenant by entireties.

Second. The original "sixteenth" finding of fact is supplemented by the following: When Catherine Flynn either importuned her husband to make a will, expressed herself as satisfied with it, or apparently accepted its provisions, she did not understand the nature of her title or know and realize that, upon said husband's death, she would, if she survived, become the

sole and absolute owner of the real estate involved in this case, to do with as she pleased without regard to the wishes or control of her husband or her son or daughter.

Third. The "seventeenth" original finding of fact is supplied by the following: When Catherine Flynn apparently acquiesced in the provisions in her husband's will of a life estate to her in his personalty, she did not know the effect of the intestate laws or that she could, if she wished, take against his will.

Fourth. The total rents collected by respondent Margaret Flynn Parker from the real estate in which she and complainant are tenants in common was, up to May 25, 1915, $3,032, and the expenses during that time, including $130.80 of commissions charged by said respondent, were $1,213.88, leaving a net balance of $1,818.12.

Conclusions of Law.

The court hereby adopts conclusions of law numbered "First" to "Sixth," both inclusive, filed September 4, 1914, as being applicable to this case upon the rehearing.

Additional Conclusions of Law.

First. That Margaret Flynn Parker must account to her cotenant, the complainant, for his one-half of the net revenues derived from the real estate described in the bill of complainant. Second. That, as the net amount of such income, up to May 25, 1915, was $1,818.12, complainant is entitled to a decree that said Margaret Flynn Parker shall pay to him as his share thereof sum of $909.06 with interest.

Opinion.

Our reasons for the present disposition of this case sufficiently appear in the "Statement," "Discussion," "Findings of Fact," and "Conclusions of Law" herein before fully set forth.

If Catherine Flynn had the full and intelligent knowledge and understanding of her rights which the authorities require, before she or her heirs can be estopped from claiming against the will of a third person, seeking to dispose of her estate, then the complainant is not entitled to partition. We cannot, notwithstanding the tes

timony of Mrs. Parker, Mrs. McElfresh, and Mrs. CcCoy, say that such knowledge existed. Dr. Vaux's testimony on the rehearing that Mrs. Flynn was suffering from softening of the brain, and her undoubted difficulty of speech and hysterical condition, warrant us in concluding that, if she had at one time known the nature of her title, she did not possess such intelligent understanding and appreciation of its nature and the effect of her husband's will as would sweep away her own property and disinherit her only son. We are convinced that complainant is entitled to partition and an accounting of the rents and profits of the property.

The court found that Eugene J. Flynn had a fee-simple interest in one-half of the land, and that Margaret Flynn Parker had a feesimple interest in one-half of the land, and directed that it be partitioned, and that Margaret Flynn Parker pay plaintiff his share of the net revenue received therefrom. Margaret Flynn Parker and Edward C. Parker appealed.

Errors assigned were in dismissing exceptions to various findings of fact and law and the decree of the court.

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

F. C. McGirr, of Pittsburgh, for appellants. H. S. McKinley and Edwin Logan, both of Pittsburgh, for appellee.

PER CURIAM. This decree is affirmed, at the costs of the appellants, on the facts found on the hearing and rehearing of the case and on the legal conclusions which correctly followed them.

(256 Pa. 177)

BAER v. STATE LIFE INS. CO. (Supreme Court of Pennsylvania. Jan. 8, 1917.) 1. INSURANCE 668(7)-LIFE INSURANCE STATEMENT AS TO HEALTH QUESTION FOR JURY.

In an action on a policy providing that it should not take effect unless insured was in good health when the first premium was paid, held, on the evidence, that whether insured, who stated in his application that he was in good health, so far as he knew, either knew or had reason to believe that he was not in good health, was for the jury.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1737-1740, 1758-1760.] 2. INSURANCE 668(7) — LIFE INSURANCE STATEMENT AS TO CONSULTING PHYSICIAN— QUESTION FOR JURY.

truth of insured's representation that he had not In such case held, on the evidence, that the consulted a physician within the past year for anything trivial or otherwise was a question for the jury.

Cent. Dig. 88 1737-1740, 1758-1760.] [Ed. Note. For other cases, see Insurance,

was for the jury, especially where he gave the names of both physicians who attended him; as in such case the insurer could have inquired of them as to his health.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1737-1740, 1758-1760.]

4. INSURANCE 151(1)-Report of MEDICAL

EXAMINER-CONSTRUCTION.

The report of a medical examiner is to be construed most strongly against the insurer for whom it is prepared, and by whose examiner the answers to the questions are taken and written into the blanks.

[Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 308-311.]

5. INSURANCE 669(7) — LIFE INSURANCE ACTION ON POLICY-INSTRUCTION.

In such action an instruction that, if made in good faith, a misrepresentation by insured as to his consultation with a physician at times other than those mentioned in the application | would not avoid the policy unless the misrepresentation was material, intended to aid the jury in determining the materiality of any misrepresentation, was not reversible error.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1774-1776.]

6. INSURANCE ~655(2) — LIFE INSURANCE HEALTH OF INSURED EVIDENCE.

In such action, where the issue was whether insured was in good health so far as he knew or believed when he made his application, evidence that to ordinary observation and to all outward appearance he was in good health was admissible.

[Ed. Note. For other cases, see Insurance, Cent. Dig. § 1677, 1680, 1681, 1685.]

"(24c) Names and addresses of consulting physicians? Dr. Swope."

In his answer to question 23 the applicant said that his attending physician was Dr. A. R. Suster (Schuster), Finleyville, Pa.

The application contains the following stipulation:

"It is hereby agreed that all the foregoing statements and also those I make to the company's medical examiner, which are hereby made a part of this application, are offered to the company as a consideration for the policy applied for."

Also a stipulation that the policy should not take effect unless the applicant was in good health when the first premium should be paid.

Condition 8 of the policy was as follows: "Entire Contract. This policy, together with the application therefor, shall constitute the entire contract between the parties hereto. All statements made by the insured shall, in the absence of fraud, be deemed representations, and avoid this policy unless it is contained in the not warranties, and no such statement shall application therefor."

Upon the trial Dr. A. R. Schuster testified that he lived next door to John Moses Baer, the insured, and had been his family physician for 12 years prior to and up to the time of his death. In the first part of the year 1913 Baer was back and forward to witness' office and consulted him mostly in regard to stomach disorders and complained some of headache. He was an unusually large meat

Assumpsit on a life insurance policy by Emma Baer against the State Life Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

From the record it appeared that this action of assumpsit was brought to recover $5,000, being the amount of a policy issued by defendant on the life of plaintiff's husband, John Moses Baer. The policy was issued July 28, 1913, and the first year's premium was paid by the insured July 31, 1913. The insured died May 4, 1914. Defendant refused to pay the loss on the ground that the insured had made false representations in his application as to his state of health and his last consultation of a physician. It was not claimed that there were misrepresentations in the application proper, but the answers alleged to be untrue were contained in the medical examiner's report, which was filled out by the examiner and signed by the applicant. The questions and answers were as follows:

"(5) Are you in perfect health so far as you know or believe? Yes."

"(22) Have you now, or have you ever had, any of the following: Headache-severe, protracted or frequent? No."

"(24) Have you consulted a physician within the past two years for anything, trivial or other wise, not mentioned above? How often, and for

what? No.

"(24a) When did you last consult a physician? "(24b) For what? Appendicitis.

complained of headaches and distress in the stomach. He was in and out almost daily, but witness could not say he was in daily for consultation. Frequently witness gave

him some treatment and cautioned him in regard to his habits of eating. Witness could not say how often Baer would develop these headaches and stomach trouble or when he first started to treat him for them. He might have complained a year before his death, which would be four or five months before Labor Day. On the day before Labor Day, 1913, Baer suffered so that his condition was alarming, and witness advised him to consult a specialist. He consulted Dr. Cameron and reported to witness that Dr. Cameron told him that he was suffering from hardening of the arteries, or arterial sclerosis. Witness had been up to that time, treating Baer merely for indiscretion in eating, and did not think there was anything more than that the matter with him.

Baer first consulted Dr. F. C. Stahlman, an eye specialist, whom he visited September 5, 1913, and who found indications of Bright's disease or diabetes. On September Sth he was examined by Dr. M. C. Cameron, who testified that he was suffering from chronic Bright's disease in an advanced stage. His condition could not have developed since July 18, 1913, but chronic Bright's disease comes on very insidiously and a man may not know he has it until it is well establish