Therefore, upon the decision now rendered by the court, it is ordered that judgment be entered in favor of the defendant, with six cents costs, besides the cost of this suit expended.

(250 Pa. 67)

In re SMITH'S ESTATE. (Supreme Court of Pennsylvania.

1915.)

CHARITABLE BEQUESTS

1. WILLS 125 VALIDITY. Under Act April 26, 1855 (P. L. 328), and Act June 7, 1911 (P. L. 702), gifts for charitable purposes contained in an unwitnessed codicil will fail.

[Ed. Note.-For other cases, see Wills, Cent Dig. § 260; Dec. Dig. 125.] 2. WILLS

316-MENTAL CAPACITY-ISSUE DEVISAVIT VEL NON.

An issue devisavit vel non will not be granted on the ground of want of mental capacity, where the evidence merely showed that testator was abnormal in his habits and tastes, somewhat eccentric and degenerate, but was capable

of managing a large estate.

[Ed. Note. For other cases, see Wills, Cent. Dig. 88 742-749; Dec. Dig. 316.] 3. WILLS 316 "UNDUE INFLUENCE"-ISSUE DEVISAVIT VEL NON.

A testator who was somewhat eccentric and degenerate left a will containing a large bequest to a beneficiary not of his family, and the scrivener, who was made executor, was also made residuary legatee. The principal legatee and scrivener were unacquainted with each other, and it did not appear that either the testator or the scrivener expected the residue would be a substantial amount. Held that, as there was no conspiracy or overreaching of the testator, an issue devisavit vel non on the ground of undue influence would not be granted, though the principal legatee had solicited gifts; mere solicitations not amounting to undue influence.

[Ed. Note.-For other cases, see Wills, Cent. Dig. 88 742-749; Dec. Dig. 316.

For other definitions, see Words and Phrases, First and Second Series, Undue Influence.] Appeal from Orphans' Court; Philadelphia County.

Petition by Ross Reynolds Smith for issues devisavit vel non in estate of Francis W. Smith, deceased. From a decree refusing the issue, petitioner appeals. Appeal dis

missed.

Dallett, P. J., filed the following opinion in the orphans' court:

By his will dated November 11, 1912, the testator, after directing the payment of his debts and funeral expenses and making provision for his funeral services and interment, gave $75,000 to the rector, church wardens, and vestrymen of the Church of the Holy Trinity for the purposes of its endowment fund, and as well directed that his pew in that church should be free forever as a memorial to his father, P. Jenks Smith, $98,000 to the Seaside Home for Invalid Children at Atlantic City for the uses and purposes of that institution, and $2,000 for the founding of two free beds (one in memory of his sister, Margaretta Wilkinson Smith, and the other in his own memory), $12,000 to the rector, church wardens and vestrymen of Grace Episcopal Church, at Crosswicks, Burlington

revoked his gift of $25,000 to the rector, church By the first codicil, dated April, 22, 1913, he wardens, and vestrymen of the Church of Holy Trinity "for the relief of the poor of the parish," and gave $10,000 to John F. Reardon, di

recting that no further sum or allowances should be made him for his services as executor, and $25,000 to Samuel M. W. Briggs in addition to the gift of $75,000 by his will, and directed his executor to give the articles mentioned in a list which should be in the possession of his executor at the time of his death to the parties therein named.

By the second codicil, dated June 12, 1913, he gave his new Packard automobile to Samuel M. W. Briggs, and directed his executor to invest sufficient money to realize an income of $1,500 per annum, which he gave to the said Samuel M. W. Briggs "to pay for keeping said automobile in first-class condition and to meet the expenses of maintaining said car, as long as he keeps it in active service and use," and then provided as follows:

"I hereby revoke and declare null and void the bequest of ninety-eight thousand dollars in bonds and mortgages in my said last will and testament to the Seaside Home for Invalid Children, Annapolis and Atlantic avenues, Atlantic City, New Jersey.

"I give and bequeath to the Seaside Home for Invalid Children, Annapolis and Atlantic ave nues, Atlantic City, New Jersey, the sum of forty-five thousand dollars in bonds and mortgages.

"I give and bequeath to the Ascension Church, Atlantic City, New Jersey, of which Rev. Charles Martin Niles is pastor, the sum of fiftythree thousand dollars in bonds and mortgages.'

[1] The testator died July 1, 1913, and left an ond codicil was not witnessed, and his gifts estate worth approximately $430,000. His secthereby for charitable purposes failed. Act April 26, 1855 (P. L. 328) § 11, and Act June 7, 1911 (P. L. 702).

The will and both codicils were prepared by John F. Reardon, who is named as executor and residuary legatee. The will and first codicil were executed in one of a suite of offices occupied by the executor, the will itself being witnessed by William S. Stenger, Esq., and Horace L. Henderson, Esq., occupants of that suite, and the first codicil by Mr. Stenger and William H. Shoemaker, Esq., Mr. Shoemaker also being an occupant of the suite. The testator had met and become acquainted with John F. Reardon, who prepared the will and two codicils, while calling upon his counsel, Mr. Stenger. Reardon, according to the testimony, had also prepared a will for the testator in 1911, and the testator had

physicians called as experts said he was suffering from senile dementia; for two of them on crossexamination admitted that their opinion was liable to change if it was shown that decedent transacted his affairs, involving the overseeing of an estate of $400,000, nearly all of which was invested, and it was affirmatively shown that up to the very time of his death he did thus conduct his business. If one's mind and memory are sufficiently sound to know and understand the business in which one is engaged at the time of the execution of a will, that is all that is legally required.

The largest beneficiary under the will and codicils was not present when they were either drafted or executed, and there is not a shred of evidence to show that he ever did unduly influence the decedent. He was not even at the time known to the scrivener, nor did he come in contact with him until a short time before the decedent's death. And, even though there was testimony that in the fall of 1911 he had stated that the decedent was an old fairy, that he was working him, that he knew what the decedent was after, and that presents were not given him "for nothing," this, in itself, would not be sufficient to sustain a verdict against the will on the ground of undue influence. Opportunity is not enough; there must be testimony that such influence was exerted. "Undoubtedly undue influence may so operate as to destroy a will, for in such case the testator is not a free agent; he becomes the mere implement of another's craft, and his testament that of the superior will. But influence short of this is not what is technically known as 'undue influence'; but, however used, it must, in order to avoid a will, destroy the free agency of the testator at the time and in the very act of making the testament. Solicitations, however importunate, cannot of themselves constitute undue influence; for, though these may have a constraining effect, they do not destroy the testator's power to freely dispose of his estate." Trost v. Dingler, 118 Pa. 259, at pages 269, 270, 12 Atl. 296, at pages 297, 298 (4 Am. St. Rep. 593).

*

*

*

Nor was the scrivener, who is executor and residuary legatee, present at the time of the execution of the will. A well-known and reputable member of the bar, who had for many years been counsel for the decedent, testified that the scrivener, who is employed in his office, came to him and told him that the decedent wished him (the scrivener) to prepare a will naming himself as executor. This was after the decedent himself had requested his counsel to act as executor, and, upon his declination, had informed him of his other selection. We do not overlook the fact that the scrivener was present at the execution of the first codicil, but there were also present, as witnesses, decedent's own attorney and another attorney and office associate, of excellent character and reputation. By this codicil the scrivener received nothing; in fact, there is internal evidence that the decedent anticipated that there might not be any residuary estate; otherwise fixing commissions at $10,000, necessarily payable from residue, is a meaning: less and an idle provision. So far as the second codicil is concerned, the uncontradicted testimony is that it was no fault of the scrivener that there were no attesting witnesses, as he himself informed decedent that this codicil might be void because of such fact, and the decedent answered, in effect, that the witnesses to the first codicil might sign, and, if not, he would remedy that when he came to Philadelphia.

Undue influence, to affect a will, must be such as subjugates the mind of the testator to the will of the person operating upon it (Tawney v. Long, 76 Pa. 106); and an issue on the ground of undue influence is to be refused, where the most that can be found from the testimony is that there was an opportunity for its exercise (McNitt's Estate, 229 Pa. 71, 78 Atl. 32). "Of course,' says Mr. Justice Moschzisker in Phillip's Estate, 244 Pa. 35, at page 46, 90 Atl. 457, at page 461, "such influence may be shown by circumstantial evidence demonstrating a prior course of improper conduct calculated to produce an undue impression likely to remain and operate in the subsequent making of a will (Steadman v. Steadman, 10 Sadler, 539); but it is not enough simply to prove a course of conduct, consistent with propriety, which afforded opportunities for undue influence (Tyson's Estate, 223 Pa. 596 [72 Atl. 1065])."

And when the effort is to establish undue influence without direct proof upon the point, "it cannot be made out by circumstances which though to be expected if there was fraud, are equally consistent with its absence, and that such circumstances cannot, whether taken singly or collectively, justify an inference of wrongdoing" (from the opinion of the lower court, adopted by the Supreme Court, in Caughey v. Bridenbaugh, 208 Pa. 414, at page 423, 57 Atl. 821, at page 824).

The testimony in the present case does not, in our judgment, bring it within the doctrine laid down in Armor's Estate, 154 Pa. 517, 26 Atl. 619, and Adam's Estate, 220 Pa. 531, 69 Atl. 989, 123 Am. St. Rep. 721, and, were it not for the earnest and able argument presented on behalf of the contestant, we might well have affirmed the decree, on the opinion of the learned hearing judge, but because of that argument we have critically and at length reviewed all of the testimony, without, however, finding anything which, in our judgment, would warrant submission to a jury.

The exceptions are dismissed.

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

William W. Porter, C. Berkeley Taylor, and Lewis Lawrence Smith, all of Philadelphia, George D. Cameron and C. Henry Stinson, of Norristown, for appellant. Alex. Simpson, Jr., and Carl M. Bowman, both of Philadelphia, for appellee Briggs. James Gay Gordon and William S. Stenger, both of Philadelphia, for appellee Reardon.

PER CURIAM. In view of the findings of the learned and careful president judge of the court below, the issue prayed for could not have been awarded. Those findings were approved by the entire court in passing upon the exceptions filed to them, and our review of the testimony has led us to the conclusion that they should not be disturbed. The appeal is dismissed, at appellant's costs, on the opinion of the court below dismissing the exceptions to the find. ings of the president judge.

Appeal dismissed.

(250 Pa. 21)

car, testified that when Mrs. Church passed

CO. 1915.)

(Supreme Court of Pennsylvania. May 26,

the facts.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 436-438; Dec. Dig. 193.]

2. TRIAL 194-INSTRUCTIONS ON EVIDENCE. In an action for damages to a passenger while alighting from a train, it was not error for the court to call the jury's attention to the fact that plaintiff's evidence that the train suddenly started as she was in the act of alighting was overwhelmingly contradicted by that of defendant, and that plaintiff was an interested witness, where 11 witnesses testified that the train was moving when plaintiff passed from the car to the platform.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. 194.]

The contention of the defendant was that the train made a stop longer than usual at Beach Haven; that reasonable time was there afforded passengers to alight, but that Mrs. Church remained seated in the car after the train had stopped, and proceeded to leave the car only after the train had started; that the train was already moving when she left her seat and before she passed through the door to the platform, and was moving with increased speed when she descended the steps; and that her injuries resulted either from her jumping from the train when in motion, or from being thrown from the steps of the platform by the ordinary motion of the train. Some 11 witnesses called by the defendant, passengers in the

Action by Almon A. Church and wife against the Delaware, Lackawanna & Western Railroad Company for personal injuries. From a judgment for defendant, plaintiffs appeal. Aflirmed.

way most direct and positive, that the train was moving on its way from the station when Mrs. Church passed out of the door of the car to the platform. Eight of these witnesses stood in no relation to the defendant company except as passengers, and 3 were employés. Several of the 8 sat imme

Paul J. Sherwood, of Wilkes-Barre, C. A. Small, of Bloomsburg, and Wm. H. Rhawn, of Catawissa, for appellants. Fred Ikeler, of Bloomsburg, Alex. C. Jackson, of Berwick, and J. H. Oliver and D. R. Reese, both of Scranton, for appellee.

STEWART, J. The action was brought by husband and wife to recover damages for injuries received by the latter while a passenger on one of the defendant company's trains. The statement of claim recited that the train in which Mrs. Church, the party injured, was a passenger having reached Beach Haven, the point of her destination, there stopped, and passengers for this station were invited to alight; that Mrs. Church in attempting to do so had moved forward from her seat, proceeded out to the platform of the car, and was upon the steps of the platform in the act of alighting, when the train was suddenly and without signal started; that she then turned and endeavored to go back inside the car to find the conductor, when, just as she did so, and while she was still upon the steps, the train started suddenly, and she was thrown to the ground and injured. It is enough to say that her own testimony on this latest trial of the case supported these several averments. One other witness, a passenger in the same

testified that after the train had started from the station she arose from her seat and, approaching where they sat, asked of them the question, "Is this Beach Haven?" and on being told that it was she turned back to her seat, gathered up her parcels, then went forward, opened the car door, and passed out. These witnesses all unite in saying that she was under their immediate observation, and that the train was moving when she passed out of the car. Nothing contradictory is to be found in the testimony of any two of them.

Recurring now to the testimony introduced by plaintiffs, it is to be remarked that this was the third opportunity the plaintiff, Mrs. Church, had to testify in court as to the circumstances under which she received her injury. This was the third time the case was tried. Her testimony on the former trials was introduced on this. It is sufficient to say that upon this last trial it was in marked contradiction to that given on the former trials, and that, too, with respect to a most material matter, the position she occupied in the car when the train began to move. And again, the witness who supports her in her present claim that the train was at rest when she passed out of the car, while a passenger with opportunity to observe, in testifying as she did was recalling a condition with respect to the train, ordinarily unim

portant, that had existed nearly four years before, as affecting a person to whom she was an utter stranger, and which had been recalled to her attention but a month before she testified. This witness had not testified on either of the former trials. There was some conflict of testimony in regard to the length of the train stop at Beach Haven, but the great weight of evidence was in favor of the defendant's contention, and the jury so found. The trial resulted in a verdict for the defendant, and the appeal raises but a single question.

The whole burden of the complaint is that the charge of the court was unfair, in that it was one-sided, and the several assignments are but specifications of matters of alleged omission and commission which are relied on in support of the complaint. One of these complains of repeated misstatements of evidence. While some inaccuracies of this character are pointed out, it is impossible to see how any prejudice could have resulted therefrom to the plaintiffs. They were not with respect to material matters, and, even though they were, the jury were carefully instructed to depend not on the court's recital of the evidence, but upon their own recollection of it. Furthermore, the alleged misstatements were suffered by counsel to go uncorrected, the attention of

the court was not called to them, and no motion for a new trial was made. Another specification directs attention to the following instruction contained in the charge:

"As a general rule a witness who is interested in the result of a suit in court is not as apt to be as honest, candid, or fair in his or her testimony as one who is disinterested. The plaintiffs are perhaps the most intensely interested witnesses who were called in the cause, but some of the witnesses called on the part of the defendant may be said to be interested witnesses, the men in charge of the train and those that were in the employ of the defendant company. But their interest is not nearly as great as is that of Mr. and Mrs. Church."

This instruction is not above criticism. While it is always proper for the court, in referring to the testimony, to call attention to the fact of a witness' interest in the result, if it exist, it is for the jury to determine to what extent, if any, that interest has affected the witness' testimony. There is no general rule such as indicated by the court. The time was when parties having interest in the result were excluded as witnesses, and it is altogether likely that that was in consequence of a supposed general rule as stated in the charge; but it is so no longer. Interest does not disqualify, and, while it may affect credibility, it is always for the jury to measure the extent. Again, the word "honest" might well have been omitted from the instruction. As here used, however, the word is not to be given the meaning ascribed by appellants; it was not personal honesty that was meant, but freedom from bias in statement of fact; and

[1] We are directed in another specification to this which occurs in the charge: "In order to return verdicts for the plaintiffs in this case, you must credit the story of Mrs. Church and her busband, and the woman from Church as to how the accident happened, Mrs. Shickshinny, Mrs. Levi Dietterick, and in effect discredit and disbelieve practically all of the evidence of the large number of witnesses who testified on the part of the defendant as to how the accident happened. The evidence of the defendant's witnesses squarely contradicts the evidence of Mrs. Church as to how the accident happened and overwhelmingly so."

This unquestionably was strong language from the bench. To decide whether it was stronger than the case warranted has required of us a very careful examination of all We said in the case testimony in the case.

of Leibig v. Steiner, 94 Pa. 466: of the judge to express his opinion of the facts "Exceptional cases arise where it is the duty and guide the minds of the jury to a correct view of the evidence; and therefore it has been settled that, when he does so without misleading facts, there is no ground for reversing. Often or controlling them in the disposition of the the court below is better able than the court of review to judge of the propriety or necessity of commenting on the evidence or the character of witnesses.'

[2] That the testimony of the witnesses for the defendant squarely contradicted that of

Mrs. Church and the one witness who sup

over

ported her with respect to the one vital question in the case rested not in opinion, but was a patent fact about which there could be no dispute. Was it an overwhelming contradiction? That was matter of opinion. Was this such an exceptional case as made it the duty of the trial judge to express an opinion that the contradiction was whelming, assuming, as most likely the case, that the jury would understand the court to mean by overwhelming that it overcame the testimony offered on part of the plaintiffs. Our examination of the testimony has satisfied us that in so charging the trial judge was fully warranted. The case was exceptional, not in the mere fact that the circumstances which would warrant a recovery were testified to only by Mrs. Church herself and a single witness called by her, while a greater number of witnesses testified to the exact reverse, but in the added fact that the plaintiff's testimony was in direct contradiction of her own testimony with respect to the one vital fact of the case on an earlier trial, and the one witness here supporting her in her testimony was recalling, after more than three years from the occurrence, a circumstance which as the witness then saw it could have been of little or no importance, and that, too, without suggesting anything that attracted her attention to it or impressed it upon her recollection. It was all these circumstances that gave such decided preponderance to defendant's evidence as to the disputed fact that a verdict for the plaintiffs could only have been regarded as so erratic as to call for a new trial. A careful reading