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them at every change in the weather. The public need for them is greatest in bad weather. The knowledge and experience of the motorman did not suggest to him any undue risk of accident, and we cannot say, or permit a jury to conjecture, that because an accident did happen in this case, it affords good ground for charging the motorman with negligence, because he did not foresee that the car would get beyond control, and did not refuse to start it down the hill. The theory upon which this action was brought, as shown by the statement, was not that the motorman erred in his judgment. There is no such claim made. The plaintiff charged only that the car was improperly operated, and that the employés were incompetent and careless, and that, owing to the careless management of the car, and by reason of deficient machinery and lack of proper brakes, the car became unmanageable. None of these charges were supported by evidence. There was no testimony whatever to show that the motorman was incompetent, or that he was remiss in any way in the operation of the car, or that the brakes or machinery were deficient. The only thing which, in the opinion of the trial judge, could be submitted to the jury was whether the judgment exercised by the motorman in deciding to run his car down the hill was bad. But no witness was produced who testified that the situation at the brow of the hill, as it appeared before the accident, was such as to deter a prudent motorman from attempting to take his car down. The finding of the jury in this respect could not have been based on evidence, but only on conjecture. At most, it would be their judgment after the accident as against that of an experienced motorman, upon the circumstances as they existed before the accident, and in a situation, too, where his own safety was at stake in the course to be pursued. Hindsight is better than foresight, no doubt, and it is easy to criticise after the event; but the iaw holds men responsible only for such consequence as can, in the exercise of reasonable prudence, be foreseen. We feel that the facts of this case negative any inference of negligence arising out of the mere attempt upon the part of the motorman to operate the car, proceeding as he did, slowly and cautiously, feeling his way, as it were, until unfortunately he found by trial that the conditions were so unusual, that, contrary to his expectation, based upon long experience, the sand would not enable him to control his car. We are unable to find in this record any evidence of negligen upon the part of the defendant company sufficient to justify the submission of the case to the jury. This plaintiff was not upon the car, and was not therefore entitled to the benefit of the presumption which arises in case of injury to a passenger.

The assignments of error are sustained, and the judgment is reversed.

(216 Pa. 583)

POWELSON v. UNITED TRACTION CO. (Supreme Court of Pennsylvania. Jan. 7, 1907.) CARRIERS-INJURY TO PASSENGER-EVIDENCE.

In an action to recover for injuries received by a passenger on a street car on entering the same, evidence held to require judgment for defendant.

Appeal from Court of Common Pleas, Allegheny County.

Action by James Powelson against the United Traction Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

William A. Challener, Clarence Burleigh, and James C. Gray, for appellant. Rody P. Marshall, Thomas M. Marshall, and John C. Haymaker, for appellee.

PER CURIAM. Counsel for appellant in their paper book say with great frankness that this appeal has been taken with the direct purpose of having this court review the several cases relating to negligence in getting on or off a moving car, and declare that the general rule that such act is negligence per se is the only rule, and that there are no exceptions to its operation.

The court have given the cases attention, and have not been convinced that they need any substantial modification. The general rule is a good rule, the exceptions are not many, and they will not be lightly increased. But to say that no exception shall be permitted under any circumstances would be to ignore the infinite variations of human action under pressure of emergencies or doubt, and to reduce the elastic principles of the common law to the rigidity of a penal statute. But how clearly the exceptions must be shown to be such is made manifest by the cases of Hunterson v. Traction Co., 205 Pa. 568, 55 Atl. 543, Bainbridge v. Traction Co., 206 Pa. 71, 55 Atl. 836, and Boulfrois v. Traction Co., 210 Pa. 263, 59 Atl. 1007, 105 Am. St. Rep. 809.

This was a very close case, but when it was here before (204 Pa. 474, 54 Atl. 282) it was held to be one for the jury. It was tried by the court below on the lines of the opinion by our late Brother Dean, and we have seen nothing to change our views. Judgment affirmed.

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process was introduced which complainant declined to do, and after an appeal complainant applies for a reopening of the case for newly discovered evidence, the decree will be reversed with directions to reopen the same.

Appeal from Court of Common Pleas, Allegheny County.

Bill by the Sterling Varnish Company against Latimer S. Macon and others. Decree for defendants, and plaintiff appeals. Reversed.

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

M. Hampton Todd, A. Leo Weil, Breck & Vaill, and Henry C. Todd, for appellant. Johns McCleave and John S. Wendt, for appellees.

PER CURIAM. Defendants obtained knowledge of certain business secrets relative to machinery and processes while in the employment of complainant under contract expressly stipulating that they were not to divulge any of such secrets or to make use of them or any part of them directly or indirectly except for complainant's benefit. This bill was filed on the ground that after leaving complainant's employment the defendants were using such secrets for their own advantage.

It was shown that they had opportunity and motive for such use; that one of them, while in sole charge during the absence of the president of the company, had had blueprint copies of machinery and drawings made, which covered the dimensions of the complainant's unique special apparatus, the drawings for which were kept in the company's safe, to which he had access; that no entry was made on the company's books as to these copies or the payment for them; that during the same period of the president's absence one secret formula at least for extra insulating varnish was copied by Macon in his own handwriting, and that he also had in his custody and charge at the time of the trial a large number of drawings and blueprints of drawings of all the machinery and apparatus in plaintiff's works; and, lastly, that a portion of defendant's machinery known as the "spray pipe" apparatus was a direct copy and infringement of complainant's secret apparatus.

This summary of the facts condensed from the court's finding, omitting details as to the resemblances, etc., shows a clear prima facie case of fraudulent breach of contract by the defendants. The learned judge below was apparently of this opinion; but, complainant having refused to put in evidence its secret formulæ, on the very substantial ground that to do so would destroy the secrecy which makes so large an element in its value, the judge thought that the proof was not technically sufficient, and that, unless the secret processes were disclosed, no relief on the vital question of infringement

could be rendered effective. He therefore limited the injunction to the spray pipe apparatus. It is not impossible, however, that appellant may make out satisfactory proof of its case by other evidence without the necessity of disclosure of secrets, nor is it clear that it has not done so. But we need not decide that point at present, as complainant has made application for reopening the case on the ground of material evidence discovered after the appeal was taken to this court. The importance of this evidence is unquestionable, and coming as it does from the other side it cannot be held to have been within the reach of appellant at an earlier date by any reasonable diligence. The application, therefore, should be granted.

The decree is reversed, with directions to allow the case to be reopened for further evidence.

(216 Pa. 425)

WOOD et al. v. SCHOEN. (Supreme Court of Pennsylvania. Jan. 7, 1907.) 1. WILLS-CONSTRUCTION.

In the construction of a will, if the language employed is plain, no rules of construction are necessary to aid in its interpretation, and the usual and ordinary meaning is to be given to the words and terms unless the context clearly shows that such was not the meaning of the testator.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 49, Wills, §§ 946-955, 972-986.]

2. WILLS-CONSTRUCTION-HEIRS.

Testator gave the income of his estate to his wife and three sisters for life, and provided that on the death of his wife and his three sisters one-third of the real estate and moneys from the personal estate should go to his nephew and niece in fee equally, and the other twothirds to such child or children as he might leave and the issue of such child or children as might be deceased. and in default of such child or children or issue, then to those who would be entitled thereto under the intestate laws. Held, to give two-thirds of the remainder of his real estate to those who were his heirs at the expiration of the particular estate, and not to those who were his heirs at the time of bis death.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 49. Wills, §§ 1116-1127.] 3. SAME.

Where testator gave the income of his estate to his wife and three sisters for life, and at their death to certain of his heirs, and to any children or issue thereof, and testator died without leaving children or the issue of children, but his wife and sisters surviving, his heirs at the time of his death could not make a good title to his real estate.

Appeal from Court of Common Pleas, Allegheny County.

Action by James S. Wood and others against William H. Schoen. Judgment for plaintiffs, and defendant appeals. Reversed. It appeared that the defendant agreed with plaints to purchase a lot of land in the second ward of the city of Pittsburg. The land formerly belonged to James Scott. The latter died leaving a will by which he directed, inter alia, as follows:

"(1) I devise all of the real estate of which I may die seized, wherever the same may be situated, to George W. Van Fleet, of the place aforesaid, and of and to such successor or successors as may be appointed in law, in trust for the uses and purposes hereinafter expressed. In the event of my death without children my said trustee shall pay one-half of the rents, issues and profits of said real estate, after the deductions aforesaid, annually to my wife Emma, during her natural life, and also the one-half of the interest annually upon the moneys invested as aforesaid, less the expenses-the other half of the said rents, issues, and profits and interest, less the deductions aforesaid, annually to my sisters, Eliza S., Mary and Catharine N., during their joint lives and to survivor or survivors for life. Upon the death of my said wife and all of my first named three sisters, I will, devise and bequeath the onethird of the real estate and moneys from the personal estate in the hands of my said trustee to my nephew, James Wood, and my niece, Lizzie Wallace, in fee, equally; the other two-thirds thereof to such child or children as I may leave, and the issue of such child or children as may be deceased. And in default of such child or children or issue, then to those who would then be entitled thereto under the intestate laws of this state. And I authorize my said trustees aforesaid to convey and assure the same by proper assurances in law to said persons respectively." James F. Scott, deceased, left to survive him neither child nor descendants in any degree, but did leave to survive him a widow, Emma E. Scott, and three sisters, viz., Eliza S. Scott, Mary Scott and Catharine N. Scott, spinsters, and a nephew, James Wood, a son of Grace Wood, a deceased sister, and a niece, Lizzie Wallace, daughter of Ellen Wallace, a deceased sister, all of full age. The plaintiffs were the heirs, or the representatives of the heirs, of James F. Scott. The defendant refused to accept a deed, claiming that the title offered to him was not marketable.

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, ELKIN, and STEWART, JJ.

George T. Hildebrand, for appellant. S. W. Dana and Richard F. Dana, for appellees.

tion. As well said by Sharswood, J., in Reck's Appeal, 78 Pa. 432: "All mere technical rules of construction must give way to the plainly expressed intention of a testator, if that intention is lawful. It is a rule of common sense as well as law not to attempt to construe that which needs no construction." The learned judge below correctly observes in his opinion that remainders are to be regarded as vested rather than contingent, and that where property is limited by will to one for life, and after his decease to the testator's next of kin or heirs, or other classes of persons similarly described, the persons who answer that description at the death of the testator and not those who answer it at the death of the tenant for life shall take, unless a contrary intent clearly appears from the will. But it should be added that when it clearly appears that the testator intended his heirs or next of kin at the death of the tenant or legatee for life to take, such intent will prevail. Buzby's Appeal, 61 Pa. 111.

James F. Scott devised all his real estate to a trustee for the purposes named in his will. If he died without children, he directed his trustee to pay one-half of the proceeds of the real estate to his wife for life, and the other half to his three sisters and the survivor of them for life. Upon the death of his wife and sisters he devised one-third of his real estate to a nephew and niece, and "the other two-thirds thereof to such child or children as I may leave, and the issue of such child or children as may be deceased; and in default of such child or children cr issue, then to those who would then be entitled thereto under the intestate laws of this state. And I authorize my said trustees aforesaid to convey and assure the same by proper assurances in law to said persons respectively." The land involved in this action passes under this last clause of the testator's will, and, as the learned judge of the court below says, the question is whether it passed as a vested remainder to those who were at the time of the death of the testator entitled under the intestate laws, or as a contingent remainder to those who shall, at the death of the survivor of the life tenants, one of whom is yet living, be the next of kin of the testator and entitled to take as if the testator had died intestate at the moment of the death of the survivor of the life tenants. The court held that the estate devised to the remaindermen vested at the death of the testator, and passed to those who were entitled under the intestate laws at that time.

MESTREZAT, J. The purpose in construing a will is to ascertain the intention of the testator, so that it may be carried out in the disposition which he has made of his property. Technical rules of construction should only be resorted to and applied in the interpretation of wills when found to be necessary in determining the meaning of the instrument, so as to effectuate the purpose of the testator. If the language employed by him in disposing of his estate is plain and clearly discloses his intention the will interprets itself, and hence no rules of construction are necessary to aid in its interpreta-pretation in construing the instrument. The

We think this was an erroneous interpre tation of the will, and defeats the clearly expressed intention of the testator. It is produced by the application of the rule of construction noticed above, without giving due consideration to the language of the will. This language is neither ambiguous nor indefinite, and therefore it is not necessary to invoke the aid of any rules of inter

Its

testator did not die intestate as to any part of his estate. The one-third of his real estate he devised to his nephew and niece in fee, and the other two-thirds in dispute here, were given to those who, at the expiration of the particular estate, would then be entitled thereto under the intestate laws of the state. This did not create an intestacy, but was simply descriptive of the persons who were to take as devisees under the will. They were such as would be entitled under the intestate laws, at the time the clause of the will became operative. This phrase of the devise, therefore, can have no significance in fixing the time at which the remaindermen were to be determined. The simple question here is, did the testator limit the estate devised to those entitled under the intestate laws to persons of that description living at his death, or at the death of the survivor of the life tenants? The will itself, unaided by any technical rules of construction, gives a definite and unequivocal answer to the question. language is: "Upon the death of my said wife and all of my first named three sisters, I will the other two-thirds then to those who would then be entitled thereto under the intestate laws of this state." The clause provides not only for the event which shall precede the passing of the estate, but also the time when the remaindermen are to be determined and the estate shall pass. The word "then" is used twice in this collocation of words and for both purposes. In the first connection, it is manifestly used as a conjunction, meaning "in that event," and in the second as an adverb of time, meaning "at that time." Inserting the definition for the word itself the clause will read as follows: "Upon the death of my said wife and all of my first named three sisters * * in that event to those who would at that time be entitled thereto under the intestate laws of this state." A universal rule in construing a will requires that, if possible, effect be given to every word and every part of it; and an equally well-established rule requires the usual and ordinary meaning to be given to words and terms in a will, unless the context shows that such was not the meaning intended by the testator. We must therefore give effect to "then" as used in both connections. It cannot be used in the second connection as a conjunction for the reason that it would be surplusage, it already having been used manifestly in that sense in the same sentence. Having been used twice so closely together in the same sentence, the word clearly was not employed the second time for the same purpose nor with the same meaning as at first used. If, therefore, it is given its adverbial significance in the second connection, it must refer to the death of the surviving life tenant as the time at which the remaindermen are to be ascertained. That is the only reasonable interpretation of which the word used in that 66 A.-6

connection is susceptible, and consequently the meaning with which the testator used it. This construction, we think, not only gives full effect to the word, but carries out the evident intention of the testator as disclosed by the entire will.

We cannot agree with the contention of the learned counsel of the appellee that the effect of the disposition of the remainder by the will is the same as if the testator had made no disposition of that part of his estate and had died intestate as to it. In the latter instance, it may be conceded that the intestacy would have taken effect as of the date of the testator's death and the persons then competent would have taken the estate subject to the prior life tenancies. But the manifest purpose of the testator was to change the effect of an intestacy occurring at his death, and to give his real estate to persons other than those who would be his heirs at that time, and hence he devised it, on the death of the life tenant, to those "who would then be entitled" and not to those "who are entitled" under the intestate laws of the state. If the testator had used the latter expression there would be some ground for the appellee's contention. But the language employed leaves no doubt as to the persons who were intended as his beneficiaries. We are of opinion that it was the intention of the testator, as disclosed by his will, to devise the two-thirds of the remainder of his real estate to those who shall be his heirs at the expiration of the particular estate, and not to those who were his heirs at the time of his death. The agreement among those who were heirs of the testator at the time of his decease did not create vested interests in them so as to authorize them to convey a good title to the defendant. The will created a contingent remainder in a class to be ascertained at the death of the surviving life tenant, and hence only those of the class living at that date will have an interest in the remainder and will be capable of contracting in regard to it. We cannot see that Ralston's Estate, 172 Pa. 104, 33 Atl. 273, has any application to the facts of this case.

The judgment of the court below is reversed, and in accordance with the terms of the case stated, judgment is now entered in favor of the defendant, and against the plaintiffs, for the sum of $1,000.

(216 Pa. 604)

ALLES v. LYON. (Supreme Court of Pennsylvania. Jan. 7, 1907.) 1. HUSBAND AND WIFE-TITLE BY ENTIRETIES -SALE OF WIFE'S INTEREST.

Where a husband and wife are owners by entirety of a lot in a city, and a municipal lien is filed against the wife alone, and judgment entered against her, a sale of the husband's interest under the lien passes no title.

2. SAME TENANCY IN COMMON-WHEN CREATED.

Where a husband and wife hold an estate as tenants by entireties, and are divorced, the

tenancy does not thereby become a tenancy in

common.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 26, Husband and Wife, § 87.]

3. SAME - DIVORCE RULE TO BRING EJECTMENT.

Where a husband and wife holding an estate by the entire ties are divorced, the wife is not entitled to a rule to bring ejectment against the husband, and, if such a rule is allowed, the failure of the husband to appear is immaterial, as the record shows why ejectment cannot be brought.

Appeal from Court of Common Pleas, Allegheny County.

Action by Louisa Alles, formerly Louisa Reis, against David A. Lyon. Judgment for plaintiff. Defendant appeals. Reversed.

The plaintiff, Louisa Alles, was divorced from John P. Reis. Reis and the plaintiff held the land in question as tenants by entireties. Plaintiff claimed that after the divorce she bought the land in at a sale under a municipal lien, and that she had a full fee-simple title, covering the entire interest in the land. Other facts appear by the opinion of the Supreme Court. The court entered judgment for plaintiff for $1,775. Defendant appealed.

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

John W. Thomas, for appellant. W. H. Lemon, for appellee.

MITCHELL, C. J. It appears by the case stated that the husband and wife were registered owners by entireties of the lot in question when the municipal lien was filed against the wife alone. Judgment on it was entered against her only, and though the levari facias avers that it is issued "with notice to John P. Reis," the husband, yet, as said by the learned judge below, it does not appear that any such notice was given. As against the husband, therefore, the lien was a nullity, and the sale under it passed no title. Simons v. Kern, 92 Pa. 455; Ferguson v. Quinn, 123 Pa. 337, 16 Atl. 844. There is no question involved about attacking a judgment collaterally as the record shows the want of jurisdiction in the court to render such judgment. When, therefore, the wife bought at the sale, she bought nothing that she did not have before, her own right of survivorship. But even if the whole title had been divested by the sale she would have bought under an obligation as trustee for her husband as co-tenant, and could not have ousted him in that way. She therefore acquired nothing as against him by the sale.

Coming now to the main question in the case, we are of opinion that the court below erred in holding that the estate by entireties was severed by the subsequent divorce of the husband and wife. The subject is very bare of authorities. The law as to divorce prevented this question from arising in the earlier English cases, and in the few cases re

ported in this country the decisions, all more or less affected by statutes, are at variance, with no clear preponderance in either way. Lewis' Appeal, 85 Mich. 340, 48 N. W. 580, 24 Am. St. Rep. 94, may be regarded as the best discussion in favor of the view that the nature of the estate is not changed, and Ames v. Norman, 36 Tenn. 683, 70 Am. Dec. 269, as the best on the other side. The question has not previously come before this court, and we are left to decide it on general principles. An estate by entireties is one held by husband and wife by virtue of title acquired by them jointly after marriage. Being regarded as one person in law they take not in parts or shares, like joint tenants or tenants in common, but each takes the whole, or in the ancient phrase they are seized, not per mie et per tout, but per tout only. Incident to this estate as to joint tenancy is the right of survivorship, with this difference, that on the death of husband or wife the survivor takes no new title or estate; he or she is in possession of the whole from its inception. It was early held that our act of March 31, 1812 (5 Smith's Laws, p. 395), abolishing survivorship in joint tenancy, did not affect estates by entireties. Robb v. Beaver, 8 Watts & S. 107 (111); and the same view has been taken of the married women's acts of April 11, 1848 (P. L. 536), and later. Diver v. Diver, 56 Pa. 106; Bramberry's Est., 156 Pa. 628, 27 Atl. 405, 22 L. R. A. 594, 36 Am. St. Rep. 64.

The general subject of estates by entireties is learnedly discussed by Lewis, C. J., in Stuckey v. Keefe's Ex'rs, 26 Pa. 397, our leading case. It was there held that a conveyance to husband and wife, their heirs and assigns, "as tenants in common, and not as joint tenants" created an estate by entireties, and the opinion was strongly expressed that the estate arose by virtue of "a rule of law founded on the rights and incapacities of the matrimonial union" and therefore that the intention was immaterial. No subsequent case has gone so far, and in Merritt v. Whitlock, 200 Pa. 50, 49 Atl. 786, it was said that it may be considered as still an open question whether husband and wife may not, since the married women's property acts, take as well as hold in common if that be the clear actual intent, notwithstanding the presumption to the contrary. The argument for the change by divorce from an estate by entire. ties to a tenancy in common rests on the assumption that as the basis of the estate is the unity of person, a severance of that unity carries with it a severance of the estate; that as after divorce an estate by entireties could not be created between the parties it cannot be continued. But this view fails to give due weight to the rule that the quality of the estate is determined at its inception. It arises, not out of unity of person alone, but out of unity of person at the time of the grant. "If an estate be made to a man and woman and their heirs, before marriage, and

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