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that paymentS On account of Collaterals are not payments on account of the debt they secure (Lord v. Ocean Bank, 20 Pa. 386, 59 Am. Dec. 728). [11, 12] As preferences without equities should be given to neither class of StockholderS, the borrowing Stockholder Should not yield for the benefit of his nonborrowing fellow, the advantage of the premium he bid for his loan, When by the dissolution of the asSociation his stock can not mature to cancel it. True it is, the premium that Was bid to Obtain the loan in this case, was bid to the Workingmen’s Loan Association and is included in the real debt of $1,000 recited in the mortgage, but the Mutual Loan Association took the assignment of the mortgage after the date of payment, stated in the mortgage to be three months after date, and taking it after maturity, it took it subject to its equities. At all events the Mutual Loan Association in accepting the assignment of the mortgage, assumed by merger the Stock undertaking of the Workingmen's Loan ASSociation, and failing in that undertaking is in no better position than if the default had been that of the Workingmen's Loan Association in the first instance. Upon its insolvency and default, it cannot claim payment Of the premium. The court will admit testimony of the amount of premium paid by the defendant in Securing the loan represented by the mortgage, and will admit in evidence the checks offered by the defendant with the qualification that they be offered and received so as to show only the money paid by the defendant as interest On the mortgage and not aS dues On the Stock. This testimony is admitted in support of the rule laid down in the case Of the Mechanics' Loan ASSociation, Supra, and Which in principle will be applied in this case, namely, that the plaintiff association being insolvent and dissolved, the amount due from the defendant as an adVanced or borrowing Stockholder is to be a Scertained by charging him with the actual amount received by him from the Workingmen's Loan ASSociation, With interest thereOn at the rate of 6 per centum per annum

from the 19th day of November, 1886, being

the date of the loan, to the 22d day of June, 1902, being the date of the dissolution of the Mutual Loan ASSociation; and by Crediting him With all Sums paid by him as interest, on the mortgage, according to the rule of partial payments, and by crediting him. With such other sum or sums, if any, that he may have paid solely on account of the loan or advance, excluding all dues, fines or other payments made on account of stock.

The defendant rested and the plaintiffs moved for binding instructions.

WOOLLEY, J. (charging the jury). Gentlemen of the Jury: There is in this case neither controverSy nor dispute as to the facts, the questions and issues involved having resolved themselves into questions and issues of law Which the court has already paSSed upon in rendering an Opinion upon the evidence. It, therefore, becomes our duty to instruct you to bring in a verdict for the plaintiffS.

[13] In ascertaining the amount of your verdict, We Will state that the mortgage Was given On November 19, 1886, that although it was given for $1,000, the defendant can be charged only with the amount which he received, Which WaS $925.65. Of that amount he received from the association the sum of $483.85 on December 3, 1886, and the sum of $441.80 on March 23, 1887, aggregating the Sum Of $925. The defendant should be charged with that aggregate sum, with interest on the tWO amounts from the dates upon Which they Were respectively received until the date of the dissolution of the Mutual Loan Association on June 22, 1902.

HaWing ascertained that total, the defendant is to be credited with 144 payments of $5 each, beginning on the nineteenth of December, 1886, calculated upon the principle Of partial payments, and Whatever balance you find should be returned by you as the amount Of yOur Verdict.

Verdict for plaintiffs for $1,006.54.

(231 Pa. 620) MOYER et al. v. RENTSCIILER.

(Supreme Court of Pennsylvania. May 17, 1911.)

WILLs ($ 597*)—CoNSTRUCTION-NATURE OF ESTATE. Testatrix devised all real estate to her grandsons, they to receive all her property “share and share alike with the desire and wishes that they are to take good care of the same until the time of their death,” and directed that, after the death of her grandsons, “said property is then to descend or go into the possession of their children, * * * provided they have some.” The grandsons had no children at the date of the will, but had children living at the time of testatrix's death. Held, that the grandsons took a fee-simple estate in the realty. [Ed. Note.—For other cases, see Wills, Dec. Dig. § 597.*]

Appeal from Court of Common Pleas, Berks County.

Bill by William D. Moyer and Oscar A. Moyer against John F. Rentschler. Judgment for plaintiffs, and defendant appeals. Affirmed.

Case stated to determine marketable title to real estate. It appeared from the case Stated that plaintiffs Were the grandsons of Veronica Klahr, and that they had agreed to sell the real estate in question to John F.

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RentSchler, the defendant. Endlich, P. J., filed the following Opinion: “By her will Veronica Klahr gave to her grandSOnS, William D. and OScar A. Moyer, all her realty and personalty, adding that they are to receive all my property, both personal and real estate, Share and Share alike, with the desire and Wishes that they are to take good care of the Same until the time of their death. In the next paragraph she says: “After the death of my grandsons, as aforesaid, said property is then to descend or go into possession of their children, * * * provided they have some.’ They had none at the date of the Will, but did have children living at the time of the testatrix's death. The question Submitted is whether the grandsons took a fee Simple in the realty or not. “The Words, “I do hereby bequeath and deViSe all my real estate and perSonal property * * * unto my two grandsons, certainly import an absolute gift, not to be restrained by the precatory language Superadded to it. Boyle V. Boyle, 152 Pa. 108, 25 Atl. 494, 34 Am. St. Rep. 629; Bellas's Est., 176 Pa. 122, 34 Atl. 1003. What, if anything, is the effect upon it of the Succeeding paragraph above quoted? That question seems to be ruled by Potts V. Kline, 174 Pa. 513, 34 Atl. 192. Doubtless, the Word ‘children’ is Ordinarily a Word of purchase; SO that the directioL that at the death Of the first takerS the eState is to go to their ‘Children’ may be regarded as evincing an intent that the firs. takers are to have a life estate only. Oyster V. Oyster, 100 Pa. 538, 45 Am. Rep. 388. But it may be construed as a word of limitation, if the language of the Will So requires. Any form of WordS Sufficient to ShOW that the remainder is to go by Way of descent to those whom the law points out as the general or lineal heirs of the first takers Will enlarge their estate for life to an estate tail by implication, a fee simple under Our Statute. Pifer V. LOCke, 205 Pa. 616, 55 Atl. 790. It is to be observed that here there is no gift over, should there be no children. Manifestly the gift to them WaS intended to include the Whole line Of SucCession. Moreover, the estate is to ‘descend’ to them. Under Haldeman W. Haldeman, 40 Pa. 29, and

Other Cases, this phrase indicates the character in which they are to talse, viz., by in

heritance from their parents, and not as a new Stock, and thus points to the first takers as Vested With an estate of inheritance and to the construction of the word ‘children’ aS a WOrd Of limitation. “It is argued that this effect of the term ‘descend’ is destroyed by the addition, or (i.e., that is to Say) go into possession. But to descend and go is the language passed upon in Haldeman V. Haldeman, 40 Pa. 29, and there Would appear to be no room

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for a decisive distinction betWeen the tWO forms Of expression. It Cannot be COnSidered that the phrase ‘descend or go into possesSion’ means anything else than ‘descend and go to.” Both signify that the estate is to become the property of the persons designated. We have, then, in this Will an absolute gift to the grandsons, followed by language which, properly interpreted, confirms the feesimple estate originally given, but which, in no view, can be regarded as effective to destroy it. It is settled by many decisions, in part enumerated in Hiestand v. Meyer, 150 Pa. 501, 505, 24 Atl. 749, and followed in Jeremy's Est., 178 Pa. 477, 35 Atl. 847; Yost V. Insurance Co., 179 Pa. 381, 36 Atl. 317, 57 Am. St. Rep. 604; Cassidy's Est., 224 Pa. 199, 73 Atl. 204, and other cases, that Where there is a clear gift in a Will it is not to be treated as cut down by a subsequent proviSion not equally clearly and necessarily manifesting a purpose SO to do. “It follows upon every ground that under the Will of Veronica Klahr the plaintiffs have a fee-Simple estate in the realty left by her and involved in this action, and that therefore, according to the stipulation of the Case Stated, they are entitled to judgment. And now, June 25, 1910, judgment is directed to be entered upon the case stated in favor of plaintiffs and against defendant for $2,278.80.” Argued before FELL, C. J., and BROWN, POTTER, ELKIN, and STEWART, JJ.

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"For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes

3. APPEAL AND ERROR (§ 743*)—ASSIGNMENTS OF ERROR – EXECUTION OF EVIDENCE - REVIEW. An assignment of error relating to the refusal of certain evidence will not be reviewed, where appellant failed in the assignment to refer to the page of the paper book where the evidence was found, as required by rule 31. [Ed. Note.—For other cases, see Appeal and

Error, Cent. Dig. §§ 2999, 3011; Dec. Dig. § 743.*] Appeal from Court of Common Pleas,

Bradford County. Action by M. Kaufman and C. Obenauer against the National Lumber Insurance Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Fanning, P. J., in refusing judgment for the defendant non Obstante Veredicto, filed the following opinion:

“Plaintiffs purchased a quantity of timber in Wysox township of C. S. Jakway, and caused the Same to be manufactured into lumber. Insurance * * * was procured thereon January 5, 1910, in the National Lumber Insurance Company of Buffalo, N. Y., “for a period of three months from the 6th day of January, 1910, at noon, to the 6th day Of April, at noon, to an amount not exceeding three thousand dollars, upon the said plaintiff's stock of sawed lumber while piled in field on easterly side of road from Gillette bridge to Mercur on Jakway farm in Wysox township, Bradford county, Pennsylvania, which said lumber, consisting of hemlock, ash, birch, beech, basswood, and maple, and a small amount of chestnut aggregating 151,000 feet, with a market Value, as claimed, of $3,400, was on March 23, 1910, totally destroyed by fire. No question is raised as to notice, proofs of loss, or other preliminary requirements. The principal grounds of defense interposed are: First that the lumber was not located easterly of the highway leading to Mercur on lands of C. S. Jakway, as set forth in the policy; and, second, that the same was piled in the Woods, and not in a field.

“There are two highways leading from Gillette bridge to Mercur—one passing by the Jakway farm buildings, through his improved lands, and coming out at the four Corners at Mercur, where there is located a blacksmitn shop, store, post office, and dwellings; and the other easterly of which the lumber was piled, also leading to Mercur, but intersecting the state road about onehalf mile west of that place. The court Could not hold as a matter of law to Which road reference was made in the description, even though the first in some particulars seemed to answer more closely the requirements. It was urged that we were requested to charge that if Jakway owned no field on the road, on the east side of which this lumber WaS piled, the plaintiff could not recover. We understamû this request to

mean, and it WaS urged in the argument, that to meet the requirements of the description the cleared field must come up to and be immediately adjacent to or abutting on the highway. We do not so understand the Wording of the policy. If there was a field easterly of the highway, answering the deScription, even though not abutting, the requirement in that respect would be met. The question whether the highway easterly Of Which the lumber was piled accorded with the description and was the one designated in the policy was, we think, under all the evidence for the jury to determine. There was testimony that a portion of the lumber piles, varying from a few inches to about one-half of the Space occupied by the lumber, projected over on lands of one Gorslina. With reference to this there was a conflict of testimony, and the question of the location of the lumber with reference to the line, if material, was for the jury. “Relative to the reasons for a new trial, because of the exclusion of the defendant's offer to prove that lumber piled in the woods, brush, or slashing would not have been insured, or was a prohibited risk, would merit serious consideration, but for the fact that in the general charge, and in answer to defendant's points, the court unequivocally instructed the jury if the lumber was so located the plaintiff could not recover. The use of the general term ‘field in the policy was indefinite. Numerous witnesses familiar with the situation described minutely the location of the lumber and character of the Surroundings, and the jury were allowed the opportunity of determining this important question by personally viewing the locus in quo. Under the circumstances disclosed we do not feel justified in holding that the conclusion reached by the jury was not Warranted by the evidence. “The rule for judgment non obstante Veredicto is discharged, and rule for judgment On the Verdict Of the jury made absolute, and judgment is directed to be entered thereon.” Argued before FELL, C. J., and BROWN, POTTER, ELKIN, and MOSCHZISKER, J.J.

Wm. Maxwell and Potter & Potter, for appellant. Rodney A. Mercur, David E. Kaufman, and Lilley & Wilson, for appellees.

MOSCHZISKER, J. The opinion of the court below States the material facts in this case, and adequately covers all of the questions raised by the first, second, third, fifth, sixth, and seventh specifications of error. It is Sufficient to Say that We See no merit in any of these assignments. They are all overruled.

[1] The fourth specification complains that the court below failed to anSWer One of the points for charge submitted by the defend

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ant. Although the record does not contain any reply to the point in question, the trial judge has filed a certificate to the effect that the request was actually affirmed by him. The fact thus certified to is not combated by counsel for the appellant. They simply stand upon the record as sent to this court. It is not necessary to consider this assignment, further than to say that, So far as the defendant was entitled to have the point answered, it was substantially covered in the general charge. Under the circumstances the assignment will not be sustained. [2] The eighth specification calls attention to the refusal to admit in evidence certain photographs of the locus in quo offered by the defense. The offer was objected to on the ground that the pictures were taken by an inexperienced amateur photographer, that they were not taken with care, and, further, that since the jurors had personally visited the ground, and observed the conditions themselves, the photographs were unnecessary for a proper understanding of the case. This Was a matter peculiarly for the trial judge to pass upon in the exercise of his discretion. The assignment is overruled. [3] The ninth specification goes to the refusal to admit certain evidence Offered by the defense for the purpose of showing that the plaintiffs were not the “unconditional and sole owners of the property in dispute.” The offer was objected to for several reasons, one of which was: “The defendant, having based his defense Specifically upon other grounds, is estopped to set up the oné claimed in the offer.” This specification as printed in the paper book is in Violation of our rule 31, which provides: “When the error assigned is to the admission or re. jection of evidence, the Specification must quote the questions or offers, * * * to: gether with a reference to the page of the paper book where the matter may be found in its regular order in the printed evidence or notes o' trial. * * * Any assignment of error not according to this rule . Will be disregarded.” The appellant fails to give a reference to the page where the matter may be found in the printed evidence. When it is considered that each justice of this Court is obliged to examine about 400 sets of paper books during the course of a court year, it will readily be seen that the rule is a highly necessary and important one, which the profeSSion must regard. This faulty Specification will not be ruled upon, but in passing we will say that we are not at all convinced that the trial judge fell into error in making the ruling Complained of. Western & A. Pipe Lines v. Home Ins. Co., 145 Pa. 346, 22 Atl. 665, 27 Am. St. Rep. 703. In considering the Various aSSignmentS We have not overlooked the terms of the policy, particularly the provision that the property

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insured was not to be located elsewhere than in the field referred to in the contract, and We have given Consideration to the COntention of the appellant that the lumber was not piled in a “field.” But we are satisfied that the question of the situation, and whether or not the place could be properly termed a field, were both for the jury, and that they were correctly submitted.

The judgment of the court below is affirmed.

(231 Pa. 623) URBAN v. FOCHT.

(Supreme Court of Pennsylvania. May 17, 1911.)


Where a building contractor erected an eleVator for the use of his employés, and an employé of a subcontractor, who was not intended to use it, was injured by its fall, he could not recover therefor against the contractor, though he used it by the permission of the contractor's foreman; plaintiff being but a mere licensee.

[Ed. Note:—For other cases, see Negligence, Cent. Dig. §§ 42–44; Dec. Dig. § 32.*]

Appeal from Court Of Common Pleas, Berks County.

Action by Charles E. Urban, by his next friend, Clemens Urban, against Levi H. Focht. From an Order refusing to take Off a nonsuit, plaintiff appeals. Affirmed.

Trespass to recover damages for personal injuries. At the trial the court entered a compulsory nonsuit, which it subsequently refused to take off; Endlich, P. J., filing the following opinion:

“The Colonial Trust Company contracted With defendant for the erection of a building, which involved certain work subsequently, by mutual consent, taken out of his hands and given to another party, Who engaged the firm of Remppis & Co. to perform a part of it. In the course of its performance by this firm, the plaintiff, one of its employés, was injured while using an elevator Constructed and operated by the defendant in the prosecution of the work done by him for the use Of his employéS. The OCCaSiOn for this WaS the circumstance that a rope and pulley used by Remppis & Co.'s men for hoisting bolts to the upper floors had been drawn up, because the bricklayerS had laid boards across the beams, loaded with brick and interfering with the manipulation of the rope. For the purpose of themselves getting to the upper floors, Renappis & Co.'s men had been in the habit of using ladders, available for that purpose at the time of the accident. Permission Was given plaintiff at his request by defendant's foreman to use the elevator in this instance to take up the bolts. It was designed Only to raise materialS. But there is testinhony that in Order to take up the bolts it was necessary for some one to go along to hold them in position. There were Several loaded wheelbarrows on the elevator at the time. Three of Remppis & Co.'s men got on with the bolts. When part of the way up, the elevator broke. “The theory upon which this action Was brought against defendant is rather vaguely indicated by the declaration, as amended the Second time, in the allegations that, being the contractor for the entire Structure and engaged in its erection, he ‘maintained and operated an elevator'; that plaintiff, in purSuance of his Occupation in connection With the erection and construction of the building, * * * was lawfully upon said elevator within the scope and performance of the duties of his employment in connection With the * * * erection and construction of said building'; that thereupon it became defendant’s duty safely to construct and maintain the elevator; that it was improperly constructed and maintained; and that plaintiff’s injury resulted from this circumStance. The nonSuit Was asked for and entered on the ground of nonproof of any relation between plaintiff and defendant upon which the responsibility sought to be fastened upon the latter in favor of the former could be legally predicated. “It is certain that the relation of employer and employé did not exist between them. It is contended, however, that the firm employing plaintiff was a subcontractor under defendant in the erection of the building. Suppose that to be so. Then, under the doctrine of Johnston v. Ott Bros., 155 Pa. 17, 25 Atl. 751, there Was a duty resting upon the defendant to do his part Of the Work in the erection of the building in a manner consistent with the safety of the employés of Remppis & Co., and for an injury occurring to One of them through defendant's failure to live up to that duty a recovery might be had against him. But there was no obligation upon him by law, and no evidence of any by contract (see Hoffner v. Prettyman, 6 Pa. Super. Ct. R. 20), to furnish the subcontractor's employés With Special conveniences, such as an elevator, in the performance of their work, or to put at their disposal for that purpose conveniences of that SOrt provided for his Own Workmen. Accordingly, had the plaintiff, while on his proper and accustomed way to his work, been hurt by the fall of the elevator, it may be that he would have had a cause of action against defendant. See Alexander v. Steel Co., 189 Pa. 582, 42 Atl. 286; Kitchen V. Mfg. CO., 207 Pa. 558, 56 Atl. 1083. But that was not at all this case. On the contrary, the plaintiff was hurt while using an appliance Of defendant Which WaS not there for plaintiff's use, and which the latter had no right, springing from his relation to defendant, to use. True, the defendant's foreman allowed him to use it. But in making use of

. *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes

that permission plaintiff was a mere licenSee, assuming as such the risks involved in the use of the elevator just as it was. It is in the nature of a mere license that its grant creates no duty and imposes no obligation upon the licensor to provide against danger or accident. Batchelor v. Fortescue, L. R. 11 Q. B. Div. 474; Sweeney v. Railroad Co., 10 Allen (Mass.) 36S, S7 Am. Dec. 644; Pelton v. Schmidt, 97 Mich. 231, 56 N. W. 689; Gillis v. Railroad Co., 59 Pa. 129, 141, 98 Am. Dec. 317; Maguire v. Magee, 13 Atl. 551; Weaver v. Steel Co., 223 Pa. 238, 240, 72 Atl. 552, 21 L. R. A. (N.S.) 466. “In obedience to these principles and authorities, it is not seen how the defendant's application for a nonsuit could properly have been refused; and therefore the rule to ShoW Cause is discharged.” Argued before FELL, C. J., and BROWN, POTTER, ELKIN, and STEWART, JJ. W. B. Bechtel, for appellant. Jefferson Snyder and Wm. J. Rourke, for appellee.

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