care upon the part of such agents, the overflows occurred, and the damages resulted. If the evidence fails to disclose both the source and cause of the overflows-source and cause traced to the defendant's agents-there can be no recovery in the case, and the verdict should be in favor of the defendant. The defendant would not be responsible for the overflow caused by rats getting into the drain pipe, and it would not be responsible for negligent or intentional acts of persons over whom it had no control. Its responsibility rests solely upon the negligent acts, if any, of its agents."

We also think there was sufficient evidence to submit to the jury on the question of punitive damages. The president of the defendant company, as well as the foreman in charge of its business on the fifth floor of the Verner Building, knew of the flooding of the plaintiff's premises during the several months in which it occurred. It took place frequently, and always resulted in more or less damage to the plaintiff's goods on the fourth floor of the building. The fact that the injurious acts occurred, with no attempt to prevent them, from time to time during the spring, summer, and fall of 1901 with defendant's knowledge on each occasion of the injury done, discloses recklessness and a willful intention on the part of the defendant to injure the plaintiff. But, more than this, giving credence to the testimony, which was the province of the jury, the declarations of the president of the company and of its foreman showed clearly that the acts of the defendant's servants, done with its knowledge, resulting in injury to the plaintiff, were for the purpose of compelling him to leave the building. He left the building, and the defendant company, which was engaged in the same business, and occupied the floors above and below him, immediately moved into and occupied the floor vacated by the plaintiff. All the facts were for the jury, and they having found, on sufficient evidence, that the injury to the plaintiff's goods and business by the defendant company was intentional and with a wanton disregard of his rights, we are not disposed to interfere with the verdict. The judgment is affirmed.

(207 Pa. 640)

FRY et al. v. MERCANTILE TRUST CO. OF PITTSBURG.

(Supreme Court of Pennsylvania. Jan. 4, 1904.)

TRUST DEED-REVOCATION.

1. A married woman, together with her husband, executed a deed of trust to her property, without power of revocation, with a provision that the income should be reserved to her for life, without liability for her own or her husband's debts, and with power to dispose of the remainder by will. The evidence showed no fraud, coercion, or concealment. Held, that the deed could not be revoked during the coverture of the woman.

Appeal from Court of Common Pleas, Allegheny County.

Bill by Irene S. Fry and others against the Mercantile Trust Company of Pittsburg to revoke a deed of trust. Decree for defendant, and plaintiffs appeal. Affirmed.

The following is the opinion of the court below (Brown, J.):

"This proceeding arises upon bill in equity by Irene S. Fry and Craig H. Fry, her husband, against the Mercantile Trust Company of Pittsburg, trustee, praying (a) a revocation of the trust created by the trust deed referred to in the findings of fact, and (b) a reconveyance of the trust property.

"Findings of Fact.

"(1) Irene S. Fry, as the owner of real and personal estate, conveyed the same (her husband joining in the conveyance) to the Mercantile Trust Company of Pittsburg, by deed dated July 16, 1897, and recorded in the recorder's office of Allegheny county, in Deed Book 963, p. 540.

"(2) Said conveyance (as therein expressed) was upon the following trust:

""To have, hold, receive and take the same to it, the Mercantile Trust Company, and its successors in the trust, in trust for the uses, purposes and objects following, and none other, that is to say: That it, the said the Mercantile Trust Company, will collect all the outstanding credits due to the said Irene S. Fry; sell all her personal property and effects, except such articles as it, the said trustee, may elect to reserve and retain for the use of the said Irene S. Fry; sell and convey the said real estate aforesaid in fee simple, or mortgage, rent or lease the same, collect and receive the rents, issues and profits thereof, pay and discharge all the just debts due and owing by the said Irene S. Fry; invest any moneys that may be realized as aforesaid and reinvest the same, and collect and receive the interest that may arise therefrom; and, further, that it, the said Mercantile Trust Company, shall and will apply all of the proceeds, increments and income of the estate hereby granted, to the comfortable support and maintenance of the said Irene S. Fry during her natural life, and so that no part of the estate hereby granted, shall at any time hereafter be subject in any manner whatsoever to the control, engagements, debts or liabilities of the said Irene S. Fry, or of her said husband, Craig H. Fry.

"And from and immediately after the death of her, the said Irene S. Fry, the said the Mercantile Trust Company, or its successor in the trust, shall, after converting all the estate herein conveyed into cash, and paying and discharging all the just debts and funeral expenses of the said Irene S. Fry, pay over and distribute the balance of the trust funds remaining in its hands, to and among the lawful heirs of the said Irene

S. Fry, in such proportions as is provided by the laws of this Commonwealth for distribution of the personal property of intestates.

"Provided, however, that the said Irene S. Fry shall have and retain the right to dispose of the property herein conveyed, both real and personal, by her last will and testament, without any restrictions or limitations whatsoever.'

"(3) The deed reserved no power of revocation.

"(4) By written instrument, duly signed and acknowledged by Fry and wife, dated March 2, 1903, they revoked said trust created by them by the deed of June 16, 1897. "(5) Written notice of said revocation was served upon the trust company March 2, 1903.

"(6) Demand for the reconveyance of the trust property having been refused, this bill was filed.

"(7) The testimony shows that the trust deed was executed by Mr. and Mrs. Fry after she had read the same-executed in good faith, for the clear and unmistakable trust purposes therein expressed. There was not a shadow of evidence that fraud or coercion induced its execution. Nor is there any evidence that from the execution and delivery of the trust deed in June, 1897, to the date of the revocation instrument of March 2, 1903, Mr. and Mrs. Fry, or either of them, ever questioned the meaning, force and active power of the trust.

"Conclusions of Law.

"That the trust deed was deliberately executed by Mr. and Mrs. Fry, with ample time to consider the purposes in contemplation, and delivered by them to the trust company without solicitation upon its part, cannot for a moment be doubted. A solemn instrument thus created is not lightly to be set aside, but only on strong and convincing reasons-reasons that in this case are wholly absent.

"The deed creates an active and a separate use trust. That it is an active trust is too clear to require the citation of authorities. That it is a separate use trust is ruled by Twining's Appeal, 97 Pa. 36. In the language of the opinion in that case: "To grant the prayer of the plaintiff would, necessarily, be upon a principle that the whole fund could be disposed of by agreement of the parties. That principle would enable the husband to influence the wife to destroy the trust created for her use. There is no difference in legal effect between this trust and one created by will or deed of a parent for use of a married daughter. If the beneficiary of the trust can defeat it by agreement while the reasons for its creation exist, it is worthless. The validity of trusts like this is too well settled to be overthrown, save by legislative power.'

"Until the death of her husband (Craig H. Fry) who joined in the execution of the

trust deed, there can be no revocation of the trust. Whether hereafter, upon his decease and her survivorship, it may be revoked, it is unnecessary to decide.

"Let a decree nisi be entered dismissing plaintiff's bill with costs."

Argued before MITCHELL, C. J., and FELL, BROWN, AND MESTREZAT, JJ. W. A. Hudson and Joseph Howley, for appellants. Stephen Stone, for appellee.

PER CURIAM. The decree is affirmed on the conclusions of law of the learned judge below.

(208 Pa. 1)

MURRAY et al. v. LOWRIE. (Supreme Court of Pennsylvania. Jan. 4, 1904.)

WILL-CONSTRUCTION-NATURE OF ESTATE. 1. Testator gave an estate in fee simple to his daughter, and by codicil he provided that any interest his said daughters, or either of them, should take in his estate, should be free from any liabilities of the debts of the husband. Held not to cut down the estate in fee simple given by the will to a separate use trust. Appeal from Court of Common Pleas, Allegheny County.

Action by John S. Murray and Catherine M. Murray against A. L. Lowrie. Judgment for plaintiffs, and defendant appeals. Affirmed.

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

Ralph Longenecker, for appellant. John P. Hunter and George D. Riddle, for appellees.

BROWN, J. After making several bequests, R. B. Mowry, by the eleventh clause in his will, gave his daughter Catherine M. Murray one-seventh of his estate in fee simple. The provision in his codicil by which the appellant contends this estate was cut down to a separate use trust is: "It is my will and I hereby direct that any and all interests my said daughters or either of them may take in my estate shall inure to them free from any and all liabilities of the debts of any husband either of them may now have or hereafter take and likewise free from the control of such husband." Without the words in the codicil, the interest of Mrs. Murray in her deceased's father's estate would have passed to her free from any liability for the debts of her husband, and free from any control by him over it. Since the act of 1848, a devise in fee simple to a married woman passes to her an absolute estate, free from liability for her husband's debts, and his control over it, unless she sees fit to so subject it. The testator was not a lawyer, and, though an intelligent man, as we may fairly gather from his will, written by himself, he may not have known that nothing more was needed than the absolute devise to his daugh

ter to preserve what he gave her from the debts and control of her husband; and, out of abundant caution, he may have deemed it necessary to add the clause in the codicil. If his intention to lessen the absolute estate to a separate use, and to deprive his daughter of the power of alienation, could be gathered from other portions of his will, we might hold that the words in the codicil are appropriate and sufficient for that purpose. But no such intention appears, and the words, standing alone, have no other effect than to repeat the testator's intention to give his daughter a seventh interest in his estate, to her, "her heirs and assigns forever." No trust is even suggested in the will or codicil, and she took her interest in her father's estate subject only to her own control and disposal of it by deed, when joined by her husband. Ringe v. Kellner, 99 Pa. 460, is conclusive that the judgment of the court below was right. In that case the testator said: "It is also my will that my daughters have and hold their share of inheritance in their own name and not let it be controlled by their respective husbands, and the husbands not inherit it unless there is no child living;" and we held: "It will be observed that no use estate is given in words, and no trust of any kind is created. Indeed, it is directed expressly that the property shall be held by the daughters in their own names, which excludes the idea of a trust. The direction that the husbands shall not control the estate is simply an expression of the legal state of the title under the act of 1848, and the result would be precisely the same if these words were not in the will. It would be straining the meaning of the last words of the clause very greatly, indeed, to hold that they created the technical estate known as an estate for the sole and separate use of a married woman, with its peculiar and undesirable incidents. 串串 * We are clear, therefore, that the words of the clause of the will above quoted, and upon which alone the contention of the defendant is based, cannot operate to create an estate for the use of the daughters only." To the same effect is the later case of Bailey v. Allegheny National Bank, 104 Pa. 425.

The two cases upon which counsel for appellant seems to place great reliance are Keating v. McAdoo, 180 Pa. 5, 36 Atl. 218, and Lewis v. Bryce, 187 Pa. 362, 41 Atl. 275. In the first, the present chief justice did not even hold that a separate use trust had been created as to the personal property. What he said in holding that the devise of the real estate was a fee, and not merely of a life estate, was that the following words were sufficient to create a trust, if such was the testator's intention: "The estate which I have bequeathed to my said daughters, Rebecca and Martha, shall not be liable to the debts, nor subject to the control of their respective husbands;" adding that, if any separate use trust was created, it was confined to the per

sonal property. That question was not before the court, and cannot be regarded as having been passed upon. In Lewis v. Bryce, the testatrix devised land to her three daughters (naming them) "during their lives, to be equally divided between them under the condition that they shall hold the same exclusively and free from all control of their husbands or any of them; said property to descend and be inherited by said daughters' children and their heirs forever." It was decided that the daughters took an estate for life, only; and, after so holding, it is true, our late Brother McCollum did add that a separate use trust had been created for the daughters, relying expressly upon the following authorities: MacConnell v. Lindsay, 131 Pa. 476, 19 Atl. 306; MacConnell v. Wright, 150 Pa. 275, 24 Atl. 517; Hays v. Leonard, 155 Pa. 474, 26 Atl. 664; Keating v. McAdoo, 180 Pa. 5, 36 Atl. 218. We have just shown that the last case has been misunderstood, and the other three cannot be regarded as authority for what appears in Lewis r. Bryce. In MacConnell v. Lindsay and MacConnell v. Wright, the testatrix devised "absolutely and in fee simple, free from the control of her present or future husband, and without any liability for any debts, liabilities or engagements of such husband, but wholly for her own use and benefit, and subject to her own control"; and in Hays v. Leonard the devise was "to have and to hold the said premises with the appurtenances to her sole and separate use, free from the interference or control of her husband, and to her heirs and assigns forever."

*

串

The judgment in this case must be, and therefore is, affirmed.

(207 Pa. 589)

SIMMONS v. SOUTHERN TRACTION CO. (Supreme Court of Pennsylvania. Jan. 4,

1904.)

INJURY TO EMPLOYE-ASSUMPTION OF RISK.

1. An employé contracting for the performance of hazardous duties assumes a risk inciIdent to the obvious dangers, thereof.

2. Where a motorman on a single-track road was injured, while attempting to replace at night the trolley, which had slipped from the wire, thereby extinguishing the lights of the car, by being struck by the following car, it was the result of the risks of the employment, for which defendant was not liable, though the single track was operated without signals.

Appeal from Court of Common Pleas, Allegheny County.

Action by James Simmons against the Southern Traction Company. From an order refusing to take off a nonsuit, plaintiff appeals. Affirmed.

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

622.

1. See Master and Servant, vol. 34, Cent. Dig. §

Frank M. McKelvey and Joseph A. McDonald, for appellant. James C. Gray and Clarence Burleigh, for appellee.

FELL, J. The plaintiff was employed as a conductor on a branch of the defendant's road which extended from Pittsburg to the borough of Sheraden. There were two tracks on most of the branch roads, but in the borough and in one or two other places there was only a single track. On the evening of the accident the plaintiff was in charge of an extra car or tripper, which ran between regular cars. While the car was on the single track in the borough, the trolley slipped from the feed wire, the car stopped, and its lights were extinguished. The plaintiff got down on the track in order to replace the trolley, and while standing back of his car he was struck and injured by the car that followed it. He had been in the employ of the company, running extra cars on this part of the road, for 27 days. The streets of the borough were lighted by electricity, but an arc light near the place of the accident happened not to be burning.

In support of his contention that proper appliances had not been furnished, the plaintiff made an offer to show that, by the rules of the company, only one car was allowed to be on the single-track extension at a time; that no signal box or other appliance was placed at the end of the double track to warn motormen that the single track was occupied, and no schedule was in use for extra cars; and that signal boxes or other appliances were in general use, and were necessary to avoid accidents where schedules failed to provide for such single-track use. This offer was overruled, and a nonsuit entered. If the testimony offered had been admitted, it would not have made out a case entitling the plaintiff to go to the jury. Whatever danger there was in the use of the single track without signals was obvious, and as fully known to the plaintiff before as after the accident, and the risk was voluntarily assumed by him. In Brossman v. Lehigh Valley Railroad Co., 113 Pa. 490, 6 Atl. 226, 57 Am. Rep. 479, a brakeman who had been employed by the railroad company for six months, and whose duties required him to be on the top of box cars, was injured by striking a bridge which was only four or five feet above the tops of the cars. Others had been injured before in this way. In holding that there could be no recovery, it was said: "When an employé, after having an opportunity to become acquainted with the risks of his situation, accepts them, he cannot complain if subsequently injured by such exposure. By contracting for the performance of hazardous duties, he assumes such risks as are incident to their discharge, from causes open and obvious, the dangerous character of which causes he has had opportunity to ascertain." In Fulford v. Lehigh Valley Railroad Co., 185 Pa. 329, 39 Atl. 1115, an

engineer who had been employed on the road six weeks was not allowed to recover, where his injury was caused by striking his head against the side of a bridge which was dangerously near the side of the passing cab, and two or three feet nearer than was usual in the case of the other bridges on the road. To the same effect are the decisions in Bellows v. Pennsylvania, etc., Canal & Railroad Co., 157 Pa. 51, 27 Atl. 685, and Fletcher v. Philadelphia Traction Co., 190 Pa. 117, 42 Atl. 527. In the latter case a conductor familiar with the road was killed while standing on the side step or running board of an open summer car, and engaged in putting down curtains during a thunderstorm, by being struck by a car on the other track. The tracks were only 37 inches apart, and the conductor's experience had been in running closed cars, and he had had no warning or instruction as to open cars.

The judgment is affirmed.

(207 Pa. 620)

MCGARY et al. v. McDERMOTT. (Supreme Court of Pennsylvania. Jan. 4, 1904.)

SPECIFIC PERFORMANCE-CONSIDERATION OF

DEED-PAROL EVIDENCE-ANSWER.

1. On a bill for specific performance of a contract to deliver two judgment notes in consideration of a conveyance to defendant of an interest in land, plaintiff can show that the consideration named in the deed was not the only consideration for the conveyance.

2. Where a responsive answer is filed to a bill, it must be overcome by the testimony of two witnesses, or of one witness with corroborating circumstances.

3. Parol evidence is admissible of a greater consideration than one named in the deed, if not directly inconsistent with the deed.

Appeal from Court of Common Pleas, Allegheny County.

Bill by Elizabeth McGary and others, by their next friend, Elizabeth McGary, against John J. McDermott. From a decree dismissing the bill, plaintiffs appeal. Affirmed.

The following is the opinion of the court below (Rodgers, J.):

"This bill was filed by Elizabeth McGary and Margaret C. McGary and Mary E. McGary, minors, by their next friend, Elizabeth McGary, against John J. McDermott, for specific performance of an alleged agreement by defendant, made in consideration of the conveyance by the said Elizabeth McGary to him of an interest in a certain lot in the city of Pittsburg, to execute and deliver unto W. H. McGary, trustee for said minor children, two judgment notes, in the sum of $1,000, each containing the usual waivers and provisions, and being payable at the attainment of majority of said minors, respectively; said bill praying for an injunction against the defendant from incumbering or

T3. See Evidence, vol. 20, Cent. Dig. § 1913.

disposing of, in any way, said land; or any part thereof.

"(1) Prior to November 13, 1899, John J. McDermott, defendant, was the owner of a certain lot situated in the city of Pittsburg, fronting nineteen and nine-tenths feet on Third avenue, and thence extending back, preserving the same width throughout, seventy-two feet to an alley. On November 13, 1889, said McDermott conveyed said lot through a proceeding to his wife, Mary Jane McDermott, for a nominal consideration.

"(2) Said Mary Jane McDermott died intestate and without issue on January 10, 1889, whereupon the said realty descended to and vested in her heirs at law, to wit, her husband, John J. McDermott, defendant; her father, George McNally, Sr.; her brothers, George McNally, Jr., Thomas McNally, Richard McNally, and Edward McNally; and her sister, Elizabeth McGary, plaintiff.

"(3) On April 8, 1889, John J. McDermott, defendant, procured a quitclaim deed for said premises from the said brothers and sisters of his deceased wife, but procured no conveyance of the interest of George McNally, Sr., her father. The consideration named in said quitclaim deed was $1. Said deed is of record in the office of the recorder of deeds in and for the county of Allegheny, in Deed Book, vol. 1027, p. 178.

"(4) It is claimed, and testimony was produced to the effect, that the real consideration for the conveyance of the interest of Elizabeth McGary, plaintiff, by said deed, was that John J. McDermott, the defendant, agreed to execute and deliver unto W. H. McGary, trustee, two judgment notes, of $1,000 each, bearing interest at the rate of six per centum per annum, containing the usual waivers and provisions, and being payable at the attainment of majority of the said Margaret C. McGary and Mary Elizabeth McGary, respectively, minor children of the said Elizabeth McGary. We are not satisfied with the testimony produced in support of this claim, and find that, while there were evidently some negotiations to that end, the minds of the parties did not meet in that particular.

"1. There being a consideration stated in the quitclaim deed, a contemporaneous parol agreement for a different consideration, inducing the execution of the deed, must be established by clear, precise, and indubitable testimony, which was not produced in this

case.

"2. The responsive answer of defendant, denying the alleged contract, must be overcome by the testimony of two witnesses, or its equivalent. The only witness to the transaction, W. H. McGary, was not, in our opinion, sufficiently corroborated.

"3. Under the facts as found, and in view of the conclusions of law, we are of opinion that plaintiff's bill should be dismissed at plaintiff's costs. Let a decree be drawn accordingly."

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

Harry M. Scott and Elmer C. Bown, for appellants. R. S. Martin and Jere Carney, for appellee.

FELL, J. The bill filed in this case was for the specific performance of a contract alleged to have been made by the defendant to execute and deliver two judgment notes in consideration of the conveyance to him of an interest in land. It was competent for the plaintiff to show that the consideration named in the deed was not the only consideration for the conveyance. The receipt in a deed is only presumptive evidence of the real consideration, and it may be overcome by parol evidence of another or greater consideration, if not directly inconsistent with the deed. Jack v. Dougherty, 3 Watts, 151; Buckley's Appeal, 48 Pa. 491, 88 Am. Dec. 468; Lewis v. Brewster, 57 Pa. 410; Henry v. Zurflieh, 203 Pa. 440, 53 Atl. 243. The proceeding, however, being in equity, the rule obtained that the effect of a responsive answer can be overcome only by the testimony of two witnesses, or of one witness and corroborating circumstances. On the vital question whether there had been an agreement for an additional consideration, the requirements of this rule were not met to the satisfaction of the learned judge who heard the witnesses. We are not convinced that there was any error in this finding.

The decree dismissing the bill is affirmed at the costs of the appellants.

(208 Pa. 5)

CRAWFORD et al. v. FOREST OIL CO. (Supreme Court of Pennsylvania. Jan. 4, 1904.)

WILL CONSTRUCTION-NATURE OF ESTATE

OIL LEASE-TRESPASS-DAMAGES.

1. Testator devised certain real estate to his son "and to his children" with a direction that the son should pay certain legacies. Held to vest in the son a life estate, and an estate in remainder in the children of the son living at testator's death.

2. Where a tenant under an oil lease from a life tenant continues to take oil after the death of the life tenant, he is liable to the remainderman in trespass.

3. The measure of damages for one unlawfully taking oil from plaintiff's land is the dif ference between what it sells for in the market and the cost of production.

Appeal from Court of Common Pleas, Washington County.

Action by Thomas L. Crawford and others against the Forest Oil Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

The following is the opinion of the court below (McIlvaine, P. J.): "From the pleadings and testimony taken,

141.

3. See Mines and Minerals, vol. 34, Cent. Dig. §