of the buildings so that there can be no re-entry | 13 Pa. Super. Ct. 244; Tricket on Landlord & upon the same by the plaintiff or his agents. Tenant, p. 362; Hendler v. Quigley, 38 Pa. Super. Ct. 39-45. It also sets forth at length the resulting losses already sustained, and those that will necessarily follow, and avers that, because there is no adequate remedy at law for the same, the plaintiff will suffer irreparable injury, unless granted an equitable remedy. [2-4] The text-books and the decisions of the courts, however, recognize several wellsettled actions at law, whereby damages may be recovered for the wrongful eviction of a tenant by his landlord. To deprive the lessee of the use and occupation of the leased premises is a breach of the landlord's covenant of quiet enjoyment and possession of the premises. Such a covenant, when not expressly set forth, will be implied from the use of the usual formal terms of the lease, viz. "lease and let," or "demise and let," etc. But whether express or implied, the breach of such covenants by the lessor entitles the tenant to recover damages in an action of covenant (or in an action of assumpsit, under our present system of pleading), and the measure of his damages for such eviction has been passed upon and repeatedly construed and determined by the courts. In some cases the form of action adopted was trespass. Tricket on Landlord & Tenant, pp. 359, 363; Johnson v. Phila., 64 Pa. Super. Ct. 278; Hendler v. Quigley, 38 Pa. Super. Ct. 39-45; Gallagher v. Burke, 13 Pa. Super. Ct. 244; Steel v. Frick, 56 Pa. 172; Seyfert v. Bean, 83 Pa. 450; O'Neal v. Sneeringer, 12 York Leg. Rec. 141; 9 Am. & Eng. Ency. of Law 1015; 24 Cyc. 1057-1060, 1072-1074. In a recent case the Supreme Court expressly holds that where there has been a wrongful eviction of the tenant by the landlord, the former may waive his action on the breach of the covenant, and bring trespass at once, for the resulting damages. Schienle v. Eckels, 227 Pa. 305, 76 Atl. 15. [5, 6] In the light of these authorities there seems to be no doubt that the plaintiff has a remedy at law against the defendant for the eviction complained of in his bill, and the only remaining question for consideration is whether or not it is adequate and sufficient to enable him to recover such damages as he may sustain. The general rule laid down in the cases cited is that the lessee may recover in an action of trespass for all losses which he can prove he has actually sustained, or which he will necessarily sustain, under the circumstances, as a result of the unlawful eviction. The measure of damages has been liberally extended to include even well-established profits of the business during the unexpired term of the lease. It has also been held that punitive or exemplary damages may be recovered, when the facts show wanton or malicious injuries to, or interference with, the lessee's possession and enjoyment of the property. Gallagher v. Burke, No wider latitude in the proofs of loss could be allowed in the trial of this case in a court of equity, and no new grounds of recovery could be introduced therein, which would make the equitable remedy more complete and adequate than that which is now afforded the plaintiff by the common-law action of trespass. It is the settled policy of the law under such circumstances to adopt no method of procedure which would deprive the defendant of his right of trial by jury, which has always been favored by the law. In this case the eviction of the tenant was a fully completed act when suit was brought, and all of its consequences will follow without regard to, and unaffected by, the form of action, or the court in which the issue is tried. The case does not present a succession of trespasses or a continuing wrongful act of the plaintiff which would require a multiplicity of suits in a common-law court, in applying a remedy for the injuries complained of. The circumstances therefore do not present a case in which irreparable injury would follow to the plaintiff, by refusing him an equitable remedy, and remanding him to the courts of law, for the recovery of his damages. [7] It is well settled, also, that a mandatory order, restoring the plaintiff to possession, will not issue after a completed eviction like this, where it is apparent that the proceeding is merely an ejectment bill, which could not be sustained in a court of equity. Fredericks et al. v. Huber et al., 180 Pa. 572, 37 Atl. 90. We are therefore of the opinion that the plaintiff should have brought his action at law, instead of filing this bill in equity, and under the provisions of the act of June 7, 1907 (P. L. 440), this case should be certified into the common-law side of the court, at the plaintiff's cost. A proper decree to that end will be signed by the court upon presentation by the defendant's counsel. A devise to a son, with direction that he "shall not alien, sell, assign, mortgage, or in-appeal. cumber any of the land during his natural life, but that the same shall descend to his legal heirs," gives him a fee-simple estate under the rule in Shelley's Case. 2. APPEAL AND ERROR 882(5)-PARTY MOVING FOR JUDGMENT ON THE PLEADINGS CAN NOT COMPLAIN OF DISPOSITION ON THE the rule in Shelley's Case applies that— "Whenever a man, by any gift or conveyance takes an estate of freehold, and in the same gift or conveyance an estate is limited, either mediately or immediately, to his heirs in fee or in tail, the word 'heirs' is a word of limitation and not of purchase." 34 Cyc. 1819. It has been followed in a multitude of our cases. We will only refer to Com. Ins. & Tr. Co. v. Gross, 261 Pa. 476, 104 Atl. 684; Mylin v. Hurst, 259 Pa. 77, 102 Atl. 429; Reutter v. McCall, 192 Pa. 77, 43 Atl. 398; Hahne et al. v. Meyer, 173 Pa. 151, 33 Atl. 1028; Appeal from Court of Common Pleas, Erie Grimes v. Shirk, 169 Pa. 74, 32 Atl. 113; County. M. Levant Davis and Charles P. Hewes, both of Erie, for appellant. Charles A. Mertens and S. Y. Rossiter, both of Erie, for appellee. WALLING, J. This action of ejectment turns upon whether a devisee took a fee or a life estate. Walter Glenn, late of Millcreek township, Erie county, died about 1873, and his last will, duly probated, provides, inter alia: "I give and bequeath to my son, James A. Glenn, my homestead farm on which I now reside situated in Millcreek township, Erie County, Pa., and containing about 55 acres, more or less. I also give and bequeath to my said son James A. Glenn my farm known as the William Robeson Farm situated in Millcreek township, Erie county containing 26 acres of land, more or less. * I further order and direct that my said son James A. Glenn shall not alien, sell, assign, mortgage or in any manner incumber any of the lands or real estate above bequeathed to him by me during his natural lifetime, but the same shall descend to his legal heirs." Hiester v. Yerger, 166 Pa. 445, 31 Atl. 122; Cockins and Harper's Appeal, 111 Pa. 26, 2 Atl. 363; Breinig v. Oldt, 45 Pa. Super. Ct. 629. The word "heirs" is a word of limita. tion, and not of purchase (Appeal of Cockins and Harper, supra; Yarnall's Appeal, 70 Pa. 335, 342; Criswell's Appeal, 41 Pa. 288; McKee v. McKinley, 33 Pa. 92); and the plaintiff, as the child of James A. Glenn, inherits from him, and not as a devisee under the will of Walter Glenn. This thought is emphasized in the last clause above quoted, "The same shall descend to his (James A. Glenn's) legal heirs." The use of the word "descend" clearly makes the first taker the source of title for his heirs. See Lauer v. Hoffman, 241 Pa. 315, 88 Atl. 496, 47 L. R. A. (N. S.) 676; Curry v. Patterson, 183 Pa. 238, 38 Atl. 594; Guthrie's Appeal, 37 Pa. 9. The contention that a fee vested in James A. Glenn is stronger here than in many of the cases cited, for the devise to him of the land in the first above-quoted clause of the will, under the act of April 8, 1833 (P. L. 250, § 9; 4 Stewart's Purdon, p. 5137), vests in him an estate of inheritance, not cut down by the subsequent language, forbidding the sale or incumbrance of the property, which provision is void as an attempted restraint upon alienation. The power of alienation is necessarily and inseparably incident to an estate in fee, and cannot be destroyed by any condition in the grant of devise under which such estate vests. Doebler's Appeal, 64 Pa. 9; Kepple's Appeal, 53 Pa. 211; Jauretche In 1878 the land last above mentioned was v. Proctor, 48 Pa. 466, 471; Naglee's Appeal, sold by the sheriff, on an execution against 33 Pa. 89; Reifsnyder v. Hunter, 19 Pa. 41 James A. Glenn, as his property, and bought | Walker et ux. v. Vincent, 19 Pa. 369. The by the defendant. He died in 1916. There- contention that the estate in James A. Glenn after his only child and heir, the plaintiff, is reduced to one for life by the fact that For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Rule for judgment for want of a sufficient affidavit of defense. The court made the rule absolute in an opinion by Bouton, P. J., which was as fol lows: the restriction upon alienation continues | Action by Frick & Lindsay Company during his natural lifetime is not tenable. against R. E. Kent and another. From an orThat simply attempts to reduce his power der making absolute rule for judgment over the property, not his interest therein; against defendant D. J. Kervin, the defendwhile to cut down a fee previously given to ant served, for want of a sufficient affidavit an estate for life requires clear and un- of defense, he appeals. Affirmed. equivocal language. See Hoopes's Estate, 231 Pa. 232, 80 Atl. 537; Kreb's Estate, 184 Pa. 222, 39 Atl. 66; McIntyre v. McIntyre, 123 Pa. 329, 16 Atl. 783, 10 Am. St. Rep. 529. The rule in Shelley's Case is a fixed rule of law, not depending upon the intention of the testator; in fact it generally does violence thereto, and is applied even contrary to his express direction. See McElwain v. Whitacre, 251 Pa. 279, 96 Atl. 655; Leonard v. Leister, 233 Pa. 475, 82 Atl. 753. It subordinates the particular to the general intent. The question is not what the testator meant, but what is the meaning of his words. Hancock's Appeal, 112 Pa. 532, 5 Atl. 56. As to that this case is free from doubt. The plaintiff brought suit to recover for certen contract, a copy of which is attached to tain machinery, etc., sold defendants on a writplaintiff's statement of claim. This machinery was to be delivered f. o. b. at Kane, Pa., for the sum of $2,765, and in said contract plaintiff agreed to furnish a man to supervise the setting up of the articles sold, and all to be in good working order, and condition. Among the articles was one 30-horse power high-stage compres sor of the capacity of 250,000 cubic feet per 24 hours. Defendant afterward ordered the goods shipped from Kane to Tiona, Pa., which order plaintiff complied with and claimed an additional amount for freight of $35.67. Defendant paid under the terms of the contract the sum of $1,000, and plaintiff claims a balance of $1,800.67, with interest from November 17, 1916. [2] Appellant complains because the lower court disposed of the case as one of law up on the pleadings; but such complaint is without merit, as the whole case depends upon the record, and there is no issue of fact. Even the sheriff's sale is expressly admitted in appellant's printed argument. Aside from The averments in the affidavit of defense are that he was the first to treat the case as to the effect that the compressor was not of the one of law, and moved for judgment on the capacity agreed to be furnished, but only about one-half thereof; that the plaintiff failed to pleadings. So far as appears, there was no furnish a competent man to supervise the insuggestion in the court below of any disput-stallation of the machinery, etc., that the same ed question of fact, nor in reality is there or at least some of it was defective and not in here. good working order and condition, was useless, The assignments of error are overruled, had to be repaired, and some parts had to be reand the judgment is affirmed. (265 Pa. 264) FRICK & LINDSAY CO. v. KENT et al. (Supreme Court of Pennsylvania. June 21, 1919.) SALES 354(13)-IN ACTION FOR PRICE, AF- In action for balance due on machinery sold and delivered under written contract, including a high-stage compressor, the setting up of which was to be supervised by seller's employé, all to be in good working order, an affidavit of defense, claiming damages in wages paid laborers and superintendent, repair on compressor, freight on shipment of it to shop and back, articles purchased to replace unsatisfactory material, loss by failure of compressor to operate, without any statement of items or showing how the lump sums were made up, was insufficient. placed with new, and that defendant was thereby damaged to an amount far in excess of plaintiff's claim, which damages he seeks to set off, and asks for judgment for a certified balance. Defendant states the various items of damage alleged to have been sustained, as follows: 1. Wages paid laborers and superintendent September 1, 1916, to January 1, 1917.... $1,500 00 501 61 2. Repair on low-stage compressor........ 100 00 352 10 4. As to the first item, the affidavit does not aver how many laborers, who they were, the time each was employed, the price paid each per day or month, the time superintendent was employed, the price paid him, or that the wages paid laborers and superintendent was reasonable or the usual and ordinary charge for such labor. As to the second item, the affidavit fails to state that the defendant actually paid or obliAppeal from Court of Common Pleas, Mc-gated himself to pay the amount of $501.61 for Kean County. repairs, or if this could be inferred from the affidavit as a whole, then there is no averment | annuity and to invest and reinvest the balance, that the said sum is the usual and ordinary and did not dispose of residue of principal, the heirs and next of kin had a standing to appear charge for such repairs. and be heard at audit of trustee's account, showing a balance of income, and to claim invalidity of charitable bequest, and that under Act 1855 (P. L. 332) § 11, on failure of any residuary legatee or devisee, part of estate went to heirs. As to the third item there is no averment that the compressor was ever shipped to the shop, or that it was necessary to ship it to the shop, and the statement of freight of about $100 has nothing on which to rest. As to the fourth item, there is no averment as to the price paid for the various articles which go to make up this item, and that the prices paid were the fair market price for such articles. As to the fifth item, the affidavit fails to state how much of the amount claimed was for failure of the compressor to operate, and how much was for failure of it to be of the capacity required, If the or how such amount was arrived at. compressor was not of the capacity required by the contract, and the defendant used it and continued to use it, which he did, his damages would not be based on so much per day for loss in capacity, but would have to be ascertained by another measure; at any rate this item of damages cannot be sustained under any averment in the affidavit. The rule is that averments such as are above considered are necessary in a statement of claim, and therefore, are required in an averment of set-off. Bethlehem Steel Co. v. Topliss, 249 Pa. 417, 94 Atl. 1099, and cases therein cited. In our opinion, the affidavit of defense under the adjudicated cases, and especially since our Procedure Act of 1915 (P. L. 483), is entirely insufficient to prevent judgment. And now, to wit, November 20, 1918, the rule for judgment is made absolute, and upon filing by plaintiff's attorney of a proper statement of liquidation, the prothonotary will enter judgment in favor of plaintiff and against D. J. Kervin, the defendant served, for the amount of plaintiff's claim. Argued before BROWN, C. J., and T. L. Hampson, of Warren, and James PER CURIAM. The judgment in this case is affirmed on the opinion of the learned court below, making the rule for it absolute. (265 Pa. 88) In re SLATER'S ESTATE. (Supreme Court of Pennsylvania. May 21, 1919.) 1. TRUSTS 324-RIGHT OF HEIRS AND NEXT OF KIN CAN EXCEPT TO TRUSTEE'S ACCOUNT. Where testator gave residue of his estate in trust to pay an annuity to his widow for life or during widowhood and to establish a home for indigent old ladies out of his unsold real estate and any accumulated income and directed executor to keep estate subject to 2. WILLS 215-VALIDITY OF CHARITABLE BEQUEST NOT DETERMINABLE BEFORE FINAL Where testator gave the residue of his es- ACCOUNTING TO TRUSTEE TO SECURE PAYMENT OF ANNUITY Where testator gave residue of his estate in trust to pay certain legacies and an annuity to his widow for life or during widowhood out of net income, and to establish a home for indigent old ladies out of his unsold real estate and any accumulated income, and directed an investment and reinvestment, and did not dispose of balance of principal, the orphans' court on adjudication on trustee's account, did not err in awarding balance to trustee to se cure payment of the annuity, in absence of any- OF CHARITABLE The failure of a charitable bequest because of insufficiency of the attestation under Act April 26, 1855 (P. L. 328) has no effect on earlier provisions of will. Appeal from Orphans' Court, Schuykill County. Exceptions by Bessie Slater Allen and George W. Slater to adjudication of a second account filed by Joseph W. Moyer, executor of Henry P. Slater, deceased, awarding a balance due the executor to provide an annual income to testator's widow under the provisions of the will. Exceptions dismissed and exceptants separately appeal. Decree affirmed on both appeals, and exceptions dismissed. See, also, Slater v. Moyer, 245 Pa. 60, 91 Atl. 216. Argued before STEWART, MOSCHZISKER, WALLING, SIMPSON, and KEPHART, JJ. Geo. M. Roads and Carl H. Wagner, both of Pottsville, for appellant. Daniel W. Kaercher and Roscoe R. Koch, both of Pottsville, for appellees. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes cure to the widow the payment of the annuity given her by the will. We do not understand that this finding is objected to on any other ground than that, if appellants' contention with respect to the invalidity of the charitable bequests were to be sustained, so much of the estate as was devoted to the charities became vested in the heirs at law, not at the time of such adjudication, but immediately upon the death of the testator, for it was then, if ever, as to the charitable bequests, that the will was void; and that testator's children have therefore a vested interest in the estate, and have a right to protect the estate from the time it was created. STEWART, J. These two appeals are the account filed should be reserved to sefrom the same adjudication and raise precisely the same questions. Inasmuch as appellants stand in the same right, we shall consider the appeals as one. Each asks for a final adjudication of two separate and distinct questions; one relating to a matter now pending in the orphans' court and there awaiting decision, the other a strictly collateral question not at issue, and in regard to which any attempted adjudication in this proceeding would therefore be inconclusive, there being no subject-matter before the court on which it could presently operate. The two matters stand in no relation to each other, except that they arise out of the same estate. These are the general facts: Henry P. Slater, a resident of Schuylkill county, died December 2, 1912, testate; his will has been duly probated; he left surviving him a widow, who has accepted the provisions of the will, and two children by a former wife, a son and daughter, to each of whom the will gives a legacy of $5, and which both have renounced. The entire balance of his estate, consisting chiefly of real property, the testator gives by his will to Joseph W. Moyer, whom he appointed executor and trustee, upon the following trusts: (1) The payment of his debts and funeral expenses; (2) the payment to each of his children a legacy of $5; (3) the payment to his widow during her life or widowhood an annuity of $1,500 out of the net income of his estate; (4) the erection of a church window as a memorial to his father and mother, and (5) the establishment out of his unsold real estate and any accumulated income of a "Home for Indigent Old Ladies." The will is silent as to any residuum. Therefore, if any such residuum should exist or for any reason occur, the testator dying intestate as to it, the will would give it to his right heirs, in other words, to his two children who are the respective appellants here. The appeals are from the adjudication on the second account filed by the executor, awarding the balance thereof $4,802.47 to the executor, Joseph W. Moyer, for the purpose of providing the annual income of $1,500 to the widow under the provisions of the will. The appellants' contention is that the charitable bequests contained in the will are void, on the ground that one of the two attesting witnesses to its execution, Joseph W. Moyer, the executor and trustee, was not "a disinterested witness," and that therefore as to it, an intestacy results, and under the provisions of the law (Act 1855 [P. L. 332] § 11), there being here no residuary legatee or devisee, so much of the estate, in such case, goes to the heirs of the decedent. This would be entirely correct, assuming the charitable bequests to be void. The auditor and the court below were in entire agreement [1-3] The right of appellants as heirs at law of the decedent to appear in the proceeding before the auditor and the court is not to be questioned, whether their purpose in so doing, as they claim, was to protect the estate, or to ask a determination by the court of the questions they raised as to the failure of the charitable bequests for the reasons indicated. So much may be conceded. The jurisdiction of the court was not only ample, but exclusive, with respect to both features of the controversy, and the standing of the appellants to urge their present contention upon the consideration of the court on their own behalf is no less clear; but the power of the court in the exercise of its legal discretion to decree as it did upon the balance appearing to be due on the account of the executor, and declining in this particular proceeding to pass upon the question of the failure of the charitable bequests in his will, is equally clear. As to the first, it is a fact found by the court and not contradicted in any way, but conceded, that the balance on the account was required for the protection of the widow's annuity of $1,500, because of the destruction by fire of certain buildings from which the principal income was derived, a bequest entirely valid and enforceable and wholly independent of and unrelated to the charitable bequest. The objection urged to the action of the court, in awarding this balance to the legal representative of the decedent and his estate, is that it was not conditioned on his giving security for the money, whereas the heirs asked to have the fund awarded them "conditioned on the protection of the widow's rights and those of creditors." It is a sufficient answer to this to say that at no time in the proceeding in the court below was the insufficiency of the security suggested, nor is it now alleged. There is nothing in the case that indicates an improper exercise by the court of its discretion in this matter. In what we have already said we have recognized the standing of the appellants to be heard in the proceeding, and therefore there |