struction of the right of one by the other, although the right was an incorporeal hereditament. The case was tried in the court below by Judge Trunkey, afterwards a justice of this court. In his charge he says: "If he [McClintock, the owner of the land] were asserting or attempting to enforce his rights to the possession of the soil, his remedy would be ejectment or trespass." The charge as a whole, although also relating to other facts, was approved by this court in an opinion by Sharswood, J.

The case of Carnegie Natural Gas Co. v. Philadelphia Co., 158 Pa. 317, 27 Atl. 951, also cited by appellee, is a case of two warring lessees each claiming the right to the gas under the same tract of land, and the main question was as to whether the one company by the failure to keep its covenants had forfeited its rights, and thereby the other company had acquired the exclusive right. It was held in that case that the right of each company was an incorporeal hereditament, and that equity had jurisdiction on the facts of that case. It by no means holds that equity had exclusive jurisdiction.

We have found no case, and none has been cited, which holds that the remedy of the owner of the thing corporate against the unlawful possession by the owner of the incorporeal hereditament must oust the trespasser by injunction. The other cases cited involv ed trespasses or acts in their nature tortious, in which cases it has been decided that for them actions at law are often inadequate remedies. In the case before us the possession was initiated by virtue of a positive contract with the owners of the fee. It was actual and peaceable. It is not alleged, nor could it be, that defendant's entry was in the beginning wrongful. All that is alleged is that during that possession plaintiff obtained a superior right by deed without notice of defendant's right-the very case for ejectment, for it is strictly a possessory action. Although in practice it has somewhat changed, its foundation and sole purpose were originally to determine the right of possession. It is still fully adequate to that purpose on these facts.

So that supposing defendant, after taking its restricted possession, had erected its buildIngs and structures, had commenced, as it did, to pipe, transport, and sell large quantities of gas, and had then refused to pay, and then the grantors, as provided by the contract, had declared it forfeited, then their right of re-entry on the land where defendant had erected its derricks and buildings would have been clear, and, if possession had been refused, their right could have been enforced by ejectment. It would have been the only appropriate remedy. The plaintiff by his deed, if he had notice of the lease, has no higher or other right than his grantors.

Assume that this contract was a mere license, then as long as defendant remained outsi'e did not have full control or posses

sion of the hereditament-it could not, under the authorities cited, bring ejectment. But when it has actually entered upon the land under its contract its position is entirely different; it then has actual peaceable possession. It could not bring an ejectment to be put in possession, but the owner could and must bring one to put it out. The reason given for barring the licensee in several of the cases is that if he recovered the sheriff could not under a writ of habere facias put him in possession without interfering with the rightful possession of the owner; but the reason wholly disappears when the grantee is in possession, and the owner denies his right to be upon his land under any contract. The nature of this possession is aptly stated by Mitchell, C. J., in Westmoreland, etc., Natural Gas Co. v. De Witt, 130 Pa. 235, 18 Atl. 724, 5 L. R. A. 731: "And equally so as between lessor and lessee in the present case, the one who controls the gas-has it in his grasp, so to speak-is the one who has possession in the legal as well as in the ordinary sense of the word. Tested by these principles, there is not the slightest doubt that the possession of the gas, as well as the right to it under this lease, was in the complainants when the bill was filed. They had put down a well, which had tapped the gas-bearing strata, and it was the only one on the land. They had it in their control, for they had only to turn a valve to have it flow into their pipe ready for use. The fact that they did not keep it flowing, but held it generally in reserve, did not affect their possession any more than a mill owner affects the continuance of his water right when he shuts his sluice gates."

We think plaintiff in this case, on this contract and under the evidence, had a full and complete remedy at law by ejectment. Therefore, for all the reasons given, the decree of the court below is reversed, and for the last one the bill is dismissed, at the costs of appellee.

(208 Pa. 45) BAILEY et al. v. PITTSBURG, C., C. & ST. L. RY. CO.

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

WILLS-CONSTRUCTION-ESTATE DEVISED-BEQUEST OF REMAINDER.

1. Testator devised all his property to his wife and her heirs forever, with the provision that, if she died before his son, "I give, bequeath and devise to him and his heirs forever the one-half of all the property before mentioned, as it may then be." Held, that the wife took an absolute interest in all the estate, both real and personal.

2. Where testator devised all of his property to his wife, with a provision that, if his son survived her, he should have the one-half of all the property devised to his mother, "as it may then be," his interest was not confined to the personal estate.

Appeal from Court of Common Pleas, Allegheny County.

Action by Katharine C. Bailey and the Fidelity Title & Trust Company, administrator of James M. Bailey, deceased, against the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company. From an order making a rule for judgment for want of a sufficient affidavit of defense absolute, defendant appeals. Affirmed.

The following is the statement of facts by the court below (Frazer, J.):

"James M. Bailey and John H. Bailey, the husband of Katharine C. Bailey, were the owners of certain real estate in the Thirtieth Ward of this city. John H. Bailey died in 1896, and by his last will, dated May 12th of that year, bequeathed and devised to his wife 'all my property, real and personal, to her and her heirs forever, with this condition: that if she shall die before our son Reade, I give, bequeath and devise to him and his heirs forever, the one-half of all the property before mentioned as it may then be.' Katharine C. Bailey, by her attorney in fact, Reade W. Bailey, joined with James M. Bailey in an agreement in writing to convey to the defendant company a portion of the real estate above referred to, and subsequently tendered to the defendant company a warranty deed for the same property, executed by James M. Bailey, and Katharine C. Bailey, by her attorney in fact, Reade W. Bailey, and demanded payment of the purchase money agreed upon, viz., $11,000. The defendant company refused to accept the deed tendered, and pay the purchase money; setting up as a reason for its refusal to do so that, under the will of John H. Bailey, his widow's title is subject to an executory devise in favor of his son, and that a marketable title to the property purchased by it can only be had by both widow and son joining in the conveyance. Defendant demanded a deed executed by Reade W. Bailey, as well as James M. and Katharine C. Bailey. This plaintiffs refused to give, and brought suit to recover the purchase money."

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

Gordon Fisher and Dalzell, Scott & Gordon, for appellant. Henry A. Davis and William M. Galbraith, for appellees.

MITCHELL, J. When testator, who was a lawyer, and knew the meaning of technical words, gave, bequeathed, and devised all his property to his wife and her heirs, forever, be certainly gave her a fee in the land; and the question here is, how far did he limit or lessen that estate by the words, "with this condition, that if she shall die before our son Reade, I give, bequeath and devise to him and his heirs forever the one-half of all the property before mentioned, as it may then be"? Conceding that the gift over to the son, if absolute, might be good as an executory devise of one-half the estate, we are

still confronted with the words "as it may then be." It is manifest that the testator contemplated the probability that the estate might not then be as he left it, and meant to provide for that contingency. It is not reasonable to suppose that he meant to refer to inevitable or involuntary changes in condition or value by fire or other accident, or change in the character of the neighborhood, for any disposition he could make would necessarily be subject to such contingencies, but, rather, to voluntary and intentional change by acts of ownership; and, as he gave this power without limit, he included the power to change by sale. His full intent may therefore be served by construing this provision to give his widow the control of the estate during her life, but with a restriction against devising more than one-half of it away from her son. How far such a restriction upon an estate in fee may be good, even as an executory devise, we need not now consider.

The argument that the restricting words, "as it may then be," should be confined to the personal estate, is not tenable. In most of the cases cited, such as Follweiler's Appeal, 102 Pa. 581, and Cox v. Sims, 125 Pa. 522, 17 Atl. 465, the estate given was only for life, and it was held that the power to consume incident to the enjoyment of the gift did not extend to the realty. In Trout v. Rominger, 198 Pa. 91, 47 Atl. 960, the gist of the decision was that the change of the investment by the sale of one piece of land, and the purchase of another with the proceeds, was not such a consumption by the widow as to defeat the testator's devise to his children of "any of the above-bequeathed property [which] should remain at the date of my wife's death." In the present case the testator classes all his estate, real and personal, together, and bequeaths and devises the whole absolutely and in fee.

As the deed from the widow will convey a good title, it is not necessary to consider the question of estoppel as to the son by his executing the deed as attorney in fact. Judgment affirmed.

(208 Pa. 48)

GFELLER v. LAPPE et al. (Supreme Court of Pennsylvania. Jan. 4, 1904.)

WILLS-CONTEST-DEVISAVIT VEL NON

REVOCATION.

1. On an issue devisavit vel non, evidence reviewed, and held sufficient to rebut the presumption of revocation arising from the fact that the will was not found after decedent's death, and also from the testimony of a witness that decedent told him that he had destroyed the will, and showed fragments of it.

Appeal from Court of Common Pleas, Allegheny County.

Action by Anna M. Gfeller against E. Adolph Lappe and others. Judgment for plaintiff, and defendants appeal. Affirmed.

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

W. A. Challener, Clarence Burleigh, James C. Gray, R. H. Jackson, Charles P. Lang, and George T. Hildebrand, for appellants. J. M. Stoner and M. A. Woodward, for appellee.

FELL, J. The issues of fact sent to the common pleas for trial were whether John C. Lappe died, leaving a last will and testament, which was afterwards destroyed or lost, and whether, if he destroyed his will, he was at the time of sound mind. But little attention was given at the trial to the second issue, and, in view of the finding of the jury that the deceased left a will, it is now of no importance. It was established beyond all doubt by the testimony that the decedent executed a will 11 months before his death. This will was prepared by his attorney after a number of interviews and a most careful consideration of the subject by the decedent, and it contained a provision for the proponent, who was his stepdaughter, similar to those made for his own children. Since this will was last seen in his possession, and was not found after his death, the presumption was that he had destroyed it. To overcome this presumption, and establish the existence of the will at his death, testimony was presented to show the continued care of the decedent for the proponent from her childhood; the promise made her mother on her deathbed that he would provide for her in his will; his repeated declarations, extending over a period of many years, when other wills were in existence, and continued almost up to the day of his death, that he had provided for her; that three months before his death he took the will from the safe deposit box where he had placed it the day it was executed, and from that time kept it about his person until he was unable to leave his house; that when confined to his bed he kept it under his pillow until a few days before he died, when it was placed in a bureau drawer in his room; that he frequently expressed his anxiety for its safety, and his fear that it would be destroyed; and, in addition to this, the admissions of those interested in the destruction of the will that they had destroyed it.

It is frankly conceded that this testimony was sufficient to rebut the presumption of revocation, and make a case for the jury. It is contended, however, that there was not sufficient evidence to sustain the verdict against the presumption and the testimony of a witness that the decedent told him that he had destroyed the will, and showed him fragments of it. If the testimony of this witness was correct, it made an end of the proponent's case, and the jury were so instructed in language that could not be misunderstood. This testimony was not of such a character that a jury would be unwarranted in disregarding it. It was discredited by oth

er testimony, and was not in harmony with the inherent probabilities.

We find no error in the charge or in the admission of testimony that calls for a reversal. The testimony took a wide range, but necessarily so, since the allegation was that of fraud; and, in the issues tried, the decedent's acts and declarations, and the conduct of the interested persons around him, were legitimate subjects of inquiry. Youndt v. Youndt, 3 Grant, Cas. 140; Gardner's Estate, 164 Pa. 420, 30 Atl. 300. The judgment is affirmed.

(207 Pa. 597)

DONNELLY v. FRICK & LINDSAY CO. (Supreme Court of Pennsylvania. Jan. 4, 1904.)

LANDLORD AND TENANT-REMOVAL OF TRADE FIXTURES.

1. Where, by permission of a landlord, without formal extension of a lease, the tenant remains on the premises for an indefinite time, the right that he had at the termination of the lease to remove his trade fixtures is not affected.

2. A landlord sued his former tenant to recover damages for wrongful removal of trade fixtures after termination of the lease. The evidence tended to show that the landlord's agent gave the tenant permission to remain in possession until another building could be procured. Held error to charge that the tenant had no right to remove the fixtures while holding over, if there was no definite and determined agreement between the parties.

Appeal from Court of Common Pleas, Allegheny County.

Action by Charles Donnelly against Frick & Lindsay Co. Judgment for plaintiff, and defendant appeals. Reversed.

Defendant was a tenant of the plaintiff. The tenancy expired on April 1, 1902. During the term defendant had erected in the premises a stationary gas engine and two dynamos, with the necessary belting and shafting. Defendant was notified to quit on December 28, 1901. The fixtures were removed on April 14, 1902. The defendant claimed that the agent of the landlord had given it permission to remain upon the premises until it could get possession of a building which it expected to occupy. A witness on behalf of the complainant testified as follows: "Then Mr. Black came to see me a few days after that, and said he wanted to see us about leasing the property again. I said, 'Mr. Black, you know perfectly well we have leased another property, and there is no use of talking about this, but I want to arrange with you about keeping the property for at least two months after the first of April.' He said, "That is perfectly satisfactory.' Plaintiff denied any extension. The court charged in part as follows:

"There is only one question of fact in this case for you to determine, and that is this, were these fixtures removed after the tenant's lease expired? The terms of the origi

nal lease expired on April 1, 1902, and unless there was an extension of that term, then that was the end of the tenancy, and they had no right to remove this machinery on April 14th, or at whatever time they did remove it after April 1st. The defendants, however, claim that there was an extension of this lease in an agreement made by Mr. Black, the agent for the landlord, with one of the officers of this defendant company. Now, that is the only question of fact in dispute, and that is the question of fact for you to determine.

"In order to constitute an agreement, it must have been an agreement of fixed and definite terms. It could not be a loose expression as to what would probably be done in the future. It must have been an agréement at that time which was binding upon both of the parties, and settled; * * but, as I have stated, that must have been a definite and determinate agreement settled between them. It could not be an expression that there will be no difficulty, or some expression that indicated that if the contingency arose that they would probably be able to arrive at an understanding. That is not an agreement. It must have been an agreement made at the time betwen the parties."

them during the tenancy, the same rule ought to and does apply when, by permission of the landlord, even without a formal renewal or extension of the lease, he continues to remain on the premises for a definite or indefinite term. During such period, in the absence of any agreement to the contrary, his intention as to his fixtures remains unchanged, and his right to remove them is unaffected by his holding over. In the present case there was testimony from which the jury could have found that the appellant was justified in believing permission had been given by the landlord's agent to remain upon the premises after April 1, 1902, and that the fixtures had been lawfully removed during the period of extension granted it, even if indefinite in duration. The tenant may have been mistaken as to its right to remain; but, if it was misled into doing so by the conduct or language of the agent of the appellee, the latter cannot now ask that the fixtures be forfeited to him. This is what the jury should have been told, and it is not to be doubted that they were misled when instructed that the holding over which would justify the removal of the fixtures must have been in pursuance of an agreement of fixed and definite terms, "binding upon both of the parties, and settled." A portion of the

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

W. K. Jennings and D. C. Jennings, for appellant. William M. Hall, Jr., and Watson B. Adair, for appellee.

BROWN, J. The articles removed from the demised premises by the appellant were trade fixtures. The well-settled rule that the tenant must remove them during the term, and that the right to do so ceases with its expiration, was correctly stated by the learned trial judge in his instructions to the jury. The lease to the appellant expired April 1, 1902, and the proper notice to quit had been served by the landlord. The fixtures were not

removed until about the middle of April, and, if there were nothing more in the case, the plaintiff ought to recover.

The presumption of the law, being in favor of trade, is that a tenant does not intend to make his trade fixtures part of the realty for the permanent benefit of his landlord, but will remove them before the end of his term; and it is only when he leaves, without removing them, during the term, that an intention of making a gift of them to the landlord is to be imputed to him. Hill v. Sewald, 53 Pa. 271, 91 Am. Dec. 209; Watts v. Lehman, 107 Pa. 106. If, during the term, no intention can be imputed to the tenant to make a gift to his landlord of fixtures which he has attached to the land for the use of his business, and he has a right to remove

been a definite and determinate agreement settled between them." In this there was error, and, that the case may be submitted under proper instructions, the judgment is reversed with a venire de novo.

the ground. This girder was 36 inches wide, with flanges at the top and bottom which extended 5 inches from the sides. Various mechanical appliances, used in connection with the machinery below were attached to the girder, and it was used also with a corresponding girder at the other side of the shop to support the rails on which the truck of an electrical crane ran from one end of the building to the other. On the top of each of the girders there was an iron rail, of the kind in general use by railroad companies, on which the wheels of the truck ran. The rails covered only a part of the top of the girders, and did not extend within five inches of the edges of the flanges. In doing his work the plaintiff stood on a ladder, one end of which rested on the ground, and the other against the side of the girder between the flanges. He found some difficulty in adjusting a bolt, and called to the master mechanic, who was passing, for advice. In order to make room for him on the ladder, the plaintiff stepped off onto the lower flange, and threw his arm on the top of the girder at the moment when the truck was passing the point.

There was no evidence in support of the allegation of the incompetency of the workman who operated the crane, and of the defendant's knowledge of it, that warranted the submission of the question to the jury. As far as appeared from the testimony, he thoroughly understood the management of the crane in all respects, except that of reversing the motor, and had run it without a mistake for over two months. And it did not appear that the crane could by any means have been stopped in time to avoid the accident. The contention that the place at which the plaintiff was directed to work was unsafe, because of the running of the crane, was wholly unsustained. The only danger incident to the work at which he was put was that of falling from the ladder on which he was expected to stand. There was no occasion for his standing elsewhere, and when he stood upon the flange there was no occasion for his putting his arm across the rail. The place became dangerous only when he thoughtlessly put himself in a position he could not have been expected to take. His case was no stronger than it would have been if he had been put to work on the ground near a railroad track, and had negligently stepped on the track in front of a moving train.

The judgment is reversed, and judgment is now entered for the defendant.

(208 Pa. 23)

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

APPEAL-REVIEW-FINDINGS OF CHANCELLOR

-EQUITY-JURISDICTION.

1. Findings of fact of a chancellor on sufficient evidence will not be reversed.

2. Where, in an equity suit, a nonresident defendant is not served with process, as provided

by Act April 6, 1859 (P. L. 387), and enters an appearance to contest the jurisdiction, and in addition to his plea to the jurisdiction sets up a defense on the merits, he submits himself to the jurisdiction, and must abide the judgment of the court on both issues.

Appeal from Court of Common Pleas, Allegheny County.

Bill by Jacob Byers against William S. Byers and William R. Byers. Decree for complainant, and defendants appeal. Affirmed.

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

John P. Hunter, Sol. Schoyer, Jr., D. S. Atkinson, W. C. Peoples, and John B. Keenan, for appellants. J. S. Moorhead, J. B. Head, James S. Beacom, David C. Newill, Reed, Smith, Shaw & Beal, and C. E. Heller, for appellee.

MESTREZAT, J. This was a bill filed against William S. Byers and the Fidelity Title & Trust Company of Pittsburg in the court of common pleas No. 2 of Allegheny county to compel the surrender to the plaintiff of 175 bonds of the par value of $1,000 each of the Mount Pleasant Coke Company, and to compel the defendants to pay to the plaintiff $40,000 in cash or to deliver to him the securities into which the money may have been converted. The bill averred that the bonds had been intrusted to the defendant Byers for safe-keeping, and were to be returned on demand to the plaintiff, and that the money was to be invested and the securities were to be delivered to the plaintiff. These bonds and securities, it was alleged, had been deposited, and were in a private box of the trust company in the city of Pittsburg. On the filing of the bill an injunction was granted restraining the defendants from opening the safe deposit box, and from taking or permitting to be taken therefrom the bonds, cash, securities, or other contents of the box. The decree awarding the injunction recited that Byers was a resident of Westmoreland county, and it appeared by the sheriff's return that the injunction was served on him in that county "by handing him a true and attested copy and with copy of bill of complaint thereof to him personally." Byers entered an appearance de bene esse. He moved the court to vacate the order authorizing personal service of the bill to be made on him in Westmoreland county and to set aside the service, but the motion was denied. He then filed a demurrer and plea to the bill, but the demurrer was overruled, and the plea was struck off, and he was directed to answer. The trust company filed an answer, from which it appears that Byers was the lessee of one of the safe boxes located in its safe deposit vault, that he alone had access to the box, and that the respondent had no knowledge of its contents. In obedience to the order of the court, Byers