But the sixth and seventh assignments seem to us better founded. It will be noticed the will was made the 28th of July, 1881. The husband and father was present when it was executed, for, by his writing appended to it, he consents to its provisions. The testatrix contemplated his survivorship, and says, "One half of the price I want to be secured in the farm while my dear husband lives," and then appointed him one of the executors. Although he died the following month, and she survived nearly two years, their expectation as to life at the date of the will, as evinced by its terms, is to be considered in interpreting it. She says, after providing a life interest in one-half the purchase money of the farm for her husband, and making an equal distribution of the whole at his death: "If any one owes us anything, take it out of their share before giving it to them, and divide it among them all." Albert, Charles, and Edward were at that time indebted to their father. The auditor finds as a fact that this indebtedness was well known to the mother when she executed the will in the presence of the father. We think it quit clear that the testatrix meant by the expression, "If any one owes us anything, take it out of their share," any debts owing to either her or husband by their children, and intended the father, as executor, to have the authority to deduct the debt from the share of the debtor in the purchase money of the farm. The auditor finds, further, as a fact, that after the mother's death, at a meeting of the heirs, this was the interpretation put upon the will by them, and that they then agreed the amounts owing by them to their father should be deducted from their share in this fund. While such an agreement would not of itself have been sufficient to give the orphans' court jurisdiction to determine the indebtedness between the father and his three sons, nevertheless it is corroborative of the construction put by the auditor upon the will,-indicates that those interested so understood the will. The orphans' court, in thus interpreting the will, and determining the indebtedness of the sons to the father, does not usurp a jurisdiction belonging to the courts of Maryland. It only ascertains a fact necessary to the proper distribution of this fund under the will. The court must determine how much "any one owes us"-the father and mother-before it can be taken "out of their share." The legatees take their shares by the will with the

in no other right. The jurisdiction of the orphans' court to ascertain the amount owing the father is just as clear as to ascertain any indebtedness to the mother. The learned judge of the court below was of opinion the language of the testatrix was too vague to warrant this construction. We think, in view of the whole will, the intent was manifest. Therefore appellant's sixth and seventh assignments of error are sustained. All the other assignments are overruled, and the record is remitted to the court below; that distribution may be made in accordance with this opinion; the costs to be paid by appellees.

1. The assignment of an expectant interest in the estate of one not then dead may be upheld in equity.

2. Where a legacy attached is claimed under a prior assignment, the validity of which is attacked. and pending proceedings the attaching creditor dies, the debtor and claimant are competent witnesses as to the validity of the assignment, the deceased creditor not being a party thereto within Act May 23, 1887, § 5.

Appeal from orphans' court, Lehigh county; E. Albright, Judge.

In the matter of the settlement of the accounts of Aaron Kuhns, executor of Reuben Kuhns, deceased. From a decree confirming the auditor's report, Julia Ann Kuhns appeals. Reversed.

Marcus C. L. Kline, for appellant. John Rupp and E. H. Stine, for appellees.

WILLIAMS, J. This appeal comes from the orphans' court, but it grows out of a controversy between an attaching creditor of Franklin R. Kuhns and an assignee of his interest as a residuary legatee under his father's last will and testament. The important facts are that Franklin R. Kuhns assigned his expectant interest in his father's estate to his sister, Julia Ann Kuhns, in February, 1890. The father died in June, 1890. In October of the same year a judgment creditor of Franklin R. Kuhns issued an attachment execution against him on a judgment obtained in 1885, and seized his interest in his father's estate. If the assignment is valid, the attachment is too late; if not valid, then the creditor is entitled to the fund to the exent of his just demand upon it. Two questions were considered by the learned auditor and the court below: First. Can a valid assignment of an expectancy be made? Second. If so, was the assignment made in this case a valid one?

The conclusion reached in the court below upon the first of these questions was clearly right. At law a valid transfer can be made of anything in actual existence. What the

assignor has, he may dispose of. What he has not, although he may hope or expect to acquire it, he can make no title to, because he has no title himself. But such sales and assignments have been sustained in courts of equity whenever good conscience seemed to require it, and not otherwise. Manufacturing Co. v. Marsh, 91 Pa. St. 96; Patterson v. Caldwell, 124 Pa. St. 455, 17 Atl. 18. If the consideration for such an assignment is a fair and honest one, the assignment will be treated as an agreement to transfer when the assignee's title accrues, and it will be held to take effect as an assignment when the expectant interest vests in the assignor.

The second question affords the only real ground for controversy in this case. Was the assignment to Julia Ann Kuhns good in equity? This must depend on the bona fides of the transfer and the adequacy of the consideration. The proof on these subjects depends on the testimony of the assignor and the assignee. The learned auditor excluded both these witnesses as incompetent to testify, and then held the assignment invalid for want of proof of consideration. This appeal is thus seen to depend on the competency of these witnesses. The auditor and the learned judge of the court below placed the incompetency of these witnesses on section 5 of the act of 23d May, 1887. The persons excluded by this clause are the surviving and remaining parties to a thing or contract in action where the other party to such thing or contract is dead, or has become a lunatic, and the interest of the decedent or lunatic has passed by his own act or the act of the law to a party on the record. In such case the surviving party, and any other person whose interest shall be adverse to that of the deceased or lunatic party, is declared to be incompetent to testify to any matter occurring before the death of said party or the adjudication of his lunacy. Does this clause include Julia or Franklin R. Kulins? It should be noticed that this question did not arise upon the trial of the cause between Newhard or the bank and Franklin R. Kuhns, but upon execution process issued upon a judgment obtained when all the parties were living and sui juris. It should be noticed, in the next place, that the question trying was the title of F. R. Kuhns to property seized in execution, which the plaintiff alleged belonged to him. The thing in action was the legacy seized. Newhard was never a party to that. It came to the defendant under his father's will, and Julia Ann Kuhns alleged that she had become the owner of it some eight months before the execution issued. The contract under examination was that under which she claimed title. Both parties to this contract were living, and both were offered as witnesses. Newhard was simply a creditor of F. R. Kuhns, who had seized property alleged to be his. Julia Ann Kuhns was a claimant of the property seized, asserting her title against her brother's creditor. If the

property seized had been a horse instead of a legacy, would the mouth of the purchaser have been closed by the act of 1887 because her vendor's creditor had died after levy made upon the horse? To state this question is to answer it. Under the sheriff's interpleader act the issue would have been made up between the creditor and the claimant. The claimant and the defendant would have been competent witnesses, and their competency would not have been affected by the death of the creditor except as to matters transpiring between the claimant and the creditor that might come under investigation. In this case the title to the thing seized was derived through an independent channel, with which Newhard had no connection. The contract, the good faith of which it was necessary to establish, was a contract to which the creditor was a stranger, and both parties to which were living; and the adverse interest existing was simply that which grows out of the mere pendency of litigation. The creditor seized, and was interested to hold, the legacy as the property of his debtor. The claimant set up a title under an assigument before the death of the father, and when the interest of the assignor was a mere expectancy. The question, therefore, was over the honesty of the transaction and the sufficiency of the consideration as between herself and her brother. Upon this question both of them were competent. The decree of the orphans' court is reversed, and the record remitted for further proceedings; the cost of this appeal to be paid by the appellee.

COMMONWEALTH v. MCLAUGHLIN. (Supreme Court of Pennsylvania. Oct. 1, 1894.)

HOMICIDE-DEFENDING HOUSE AGAINST AGGRESSORS.

While deceased was drinking at defendant's saloon, political discussion led to abusive language between them; whereupon defendant ordered him to leave, and, on his refusing, defendant seized a club to strike him. They were separated, and deceased was led out. after, G., who had offered to take deceased home, knocked at the door, and asked for their hats. Thereupon, according to the state, defendant picked up a heavy iron, opened the door, stepped outside, and struck deceased on the head. Defendant claimed that the blow was directed at G., who was trying to open the door and re-enter; that, after the call for the hats, he had opened the door, and passed one hat out; that G. pressed against the door in his effort to get in: and that after warning him to desist, and while standing in the saloon, defendant struck the blow through the partially opened door. Held, that there was nothing calling for instructions on the defense by defendant of his house against aggressors who were seeking to force their way in for an unlawful purpose.

Appeal from court of oyer and terminer, Luzerne county.

James McLaughlin was convicted of manslaughter, and appeals. Affirmed.

John T. Lenahan and W. H. McCartney, for appellant. John M. Garmam, Dist. Atty., and James L. Morris, for the Commonwealth.

FELL, J. James McLaughlin was convicted of voluntary manslaughter in causing the death of James Gilmartin. The commonwealth's case was this: Late on a Saturday night, James Gilmartin and his nephew John Gownley went to the saloon or hotel of James McLaughlin. They had been drinking at other saloons during the evening, and drank a number of times at McLaughlin's. Gilmartin became engaged with several persons there in a heated political discussion, which led to the exchange of abusive language between him and McLaughlin. He was ordered to leave the saloon, and, upon his refusal to do so, McLaughlin armed himself with a club or mallet, and attempted to strike him. A number of persons present interfered to prevent this, and, while one held McLaughlin, others led Gilmartin out by a side door. John Gownley, who had offered to take Gilmartin home, went out with him, and soon afterwards knocked at the door, and asked for their hats, which had been left in the saloon. McLaughlin crossed the room, picked up a heavy iron bar, four feet long, opened the door, and, stepping into the alley, raised the bar with both hands, and struck a blow which fractured Gilmartin's skull, and caused his death. He was prevented by Gownley from striking a second blow. The prisoner admitted striking a blow with the iron bar, but asserted that it was directed the hand or arm of Gownley, who was tr to push the door open and re-enter the He testified that, after there was a

tb. bata pe opened the doon mido

9

sault him, and he had had no quarrel whatever with Gownley, whose whole effort had been to prevent violence. Both men had gone out peacefully, and some minutes afterwards returned for their hats, which was their right. Gownley knocked at the door, and asked for them. He was the only one who spoke. He used no violent language, and made no threats, but rather pleaded to be let in. McLaughlin was surrounded by his friends, and had no reason to apprehend personal violence or unlawful conduct of any kind. It is idle to assert that the blow which he struck was to repel an unlawful invasion of his house. Such a view of the case does not arise from the testimony, but is suggested only by the points submitted for charge by the defendant. The judgment is affirmed.

COMMONWEALTH v. VROOMAN. (Supreme Court of Pennsylvania. Oct. 1, 1894.)

CONSTITUTIONAL LAW PRIVILEGES AND IMMUNI TIES OF CITIZENS-INSURANCE BUSINESS - LIMITATION TO CORPORATIONS-POLICE POWER.

1. Act 1870, "to prevent the issue of unauthorized policies of insurance," which makes it unlawful for any person, partnership, or association

any policy of insurance against rity to do so expressly conincorporation given acclares policies issued

, and the issuance t in conflict with ing states from The privileges ed States,

nal proDean

WILLIAMS, J. This case raises a question of constitutional law that does not seem to have been decided by the courts of this state. The facts are that in 1870 the legislature passed and the governor approved an act entitled "An act to prevent the issue of unauthorized policies of insurance." Section 1 made it unlawful for any person, partnership, or association to issue any policy of insurance against fire without authority to do so expressly conferred by a charter of incorporation given according to law, and declared all policies issued without such authority to be void. The second section made it a misdemeanor to issue a policy of insurance against loss by fire without the authority required by the first section. The special verdict rendered in this case finds that the defendant did violate the act of 1870 by making and issuing for himself and others a policy against loss by fire, in the year 1894, without having obtained a charter of incorporation authorizing the making of such insurance. Upon this verdict the learned judge of the court below entered a judgment in favor of the defendant, holding that the act of 1870 was void, because in violation of the constitution of the United States and of this state. The commonwealth appeals.

A single question is thus presented, viz. does the act of 1870 violate the tution

of either the United Stato

The learned judge hel

amendment to the c

States was infring

amendment dec

or enforce

privileges

United

a line between citizens of this state and citizens of other states. It is therefore in no sense a violation of the fourteenth amendment of the constitution of the United States. and this branch of the discussion may be properly dropped at this point, and our attention confined to the other, viz. is the act of 1870 a violation of the first section of the bill of rights in the constitution of this state? That section affirms that "all men are born equally free and independent, and have certain inherent and inalienable rights, among which are those of * * acquiring, possessing and protecting property and reputation." The methods by which this right to acquire property is asserted and exercised are, however, and have been since organized government began among men, subject to regulation by law. The power of government thus brought into service is known as the "police power." If the act of 1870 is a valid exercise of the police power, then no constitutional right is invaded, but the mode in which the right guarantied by the first section of the bill of rights may be exercised consistently with the best good of the greatest number is regulated and prescribed. The general character of the police power is well understood, although neither the text-books nor decided cases have yet given us an adequate definition of it. Little more has been attempted by the courts of this country than to determine that a particular subject does or does not fall within the range of this power. An illustration is fforded by the Boston Beer Co. v. Massachu

97 U. S. 25, in which this language was "However difficult it may be to render Factory definition of it [the police pow

e seems to be no doubt that it does