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care upon the part of such agents, the over

Appeal from Court of Common Pleas, Alflows occurred, and the damages resulted. If

legheny County. the evidence fails to disclose both the source

Bill by Irene S. Fry and others against and cause of the overflows-source and cause the Mercantile Trust Company of Pittsburg traced to the defendant's agents—there can to revoke a deed of trust. Decree for debe no recovery in the case, and the verdict

fendant, and plaintiffs appeal. Affirmed. should be in favor of the defendant. The de. fendant would not be responsible for the

The following is the opinion of the court

below (Brown, J.): overflow caused by rats getting into the drain pipe, and it would not be responsible for neg

“This proceeding arises upon bill in equity

by Irene S. Fry and Craig H. Fry, her husligent or intentional acts of persons over whom it had no control. Its responsibility

band, against the Mercantile Trust Comparests solely upon the negligent acts, if any,

ny of Pittsburg, trustee, praying (a) a revoof its agents.”

cation of the trust created by the trust deed

referred to in the findings of fact, and (b) We also think there was sufficient evidence to submit to the jury on the question of puni

a reconveyance of the trust property. tire damages. The president of the defend

"Findings of Fact. ant company, as well as the foreman in charge of its business on the fifth floor of “(1) Irene S. Fry, as the owner of real and the Verner Building, knew of the flooding of personal estate, conveyed the same (her husthe plaintiff's premises during the several band joining in the conveyance) to the Mermonths in which it occurred. It took place cantile Trust Company of Pittsburg, by deed frequently, and always resulted in more or

dated July 16, 1897, and recorded in the reless damage to the plaintiff's goods on the

corder's office of Allegheny county, in Deed fourth floor of the building. The fact that Book 963, p. 540. the injurious acts occurred, with no attempt "(2) Said conveyance (as therein expressed) to prevent them, from time to time during was upon the following trust: the spring, summer, and fall of 1901 with de- “ 'To have, hold, receive and take the same fendant's knowledge on each occasion of the to it, the Mercantile Trust Company, and its injury done, discloses recklessness and a wille successors in the trust, in trust for the uses, ful intention on the part of the defendant to purposes and objects following, and none injure the plaintiff. But, more than this, other, that is to say: That it, the said the giving credence to the testimony, which was

Mercantile Trust Company, will collect all the province of the jury, the declarations of the outstanding credits due to the said Irene the president of the company and of its fore

S. Fry; sell all her personal property and man showed clearly that the acts of the de- effects, except such articles as it, the said fendant's servants, done with its knowledge, trustee, may elect to reserve and retain for resulting in injury to the plaintiff, were for

the use of the said Irene S. Fry; sell and the purpose of compelling him to leave the convey the said real estate aforesaid in fee building. He left the building, and the de simple, or mortgage, rent or lease the same, fendant company, which was engaged in the collect and receive the rents, issues and profsame business, and occupied the floors above its thereof, pay and discharge all the just and below him, immediately moved into and debts due and owing by the said Irene S. occupied the floor vacated by the plaintiff. Fry; invest any moneys that may be realAll the facts were for the jury, and they hav

ized as aforesaid and reinvest the same, ing found, on sufficient evidence, that the in- and collect and receive the interest that may jury to the plaintiff's goods and business by arise therefrom; and, further, that it, the the defendant company was intentional and said Mercantile Trust Company, shall and with a wanton disregard of his rights, we are will apply all of the proceeds, increments not disposed to interfere with the verdict.

and income of the estate hereby granted, to The judgment is affirmed.

the comfortable support and maintenance of the said Irene S. Fry during her natural life,

and so that no part of the estate hereby (207 Pa. 640)

granted, shall at any time hereafter be sub- ,

ject in any manner whatsoever to the conFRY et al. v. MERCANTILE TRUST CO. OF

trol, engagements, debts or liabilities of the PITTSBURG.

said Irene S. Fry, or of her said husband, (Supreme Court of Pennsylvania. Jan. 4,

Craig H. Fry. 1904.)

“ 'And from and immediately after the TRUST DEED-REVOCATION,

death of her, the said Irene S. Fry, the said 1. A married woman, together with her hus- the Mercantile Trust Company, or its sucband, executed a deed of trust to her property,

cessor in the trust, shall, after converting without power of revocation, with a provision that the income should be reserved to her for

all the estate herein conveyed into cash, and life, without liability for her own or her hus- paying and discharging all the just debts band's debts, and with power to dispose of the and funeral expenses of the said Irene S. remainder by will. The evidence showed no fraud, coercion, or concealment. Held, that the Fry, pay over and distribute the balance of deed could not be revoked during the coverture

the trust funds remaining in its hands, to of the woman.

and among the lawful heirs of the said Irene

8. Fry, in such proportions as is provided by trust deed, there can be no revocation of the the laws of this Commonwealth for distribu- trust. Whether hereafter, upon his decease tion of the personal property of intestates. and her survivorship, it may be revoked, it

“ 'Provided, however, that the said Irene is unnecessary to decide. S. Fry shall have and retain the right to "Let a decree nisi be entered dismissing dispose of the property herein conveyed, both plaintiff's bill with costs." real and personal, by her last will and testa- Argued before MITCHELL, C. J., and ment, without any restrictions or limitations FELL, BROWN, AND MESTREZAT, JJ. whatsoever.'

W. A. Hudson and Joseph Howley, for "(3) The deed reserved no power of revo

appellants. Stephen Stone, for appellee. cation. “(4) By written instrument, duly signed

PER CURIAM. The decree is affirmed on and acknowledged by Fry and wife, dated

the conclusions of law of the learned judge March 2, 1903, they revoked said trust cre

below. ated by them by the deed of June 16, 1897.

“(5) Written notice of said revocation was served upon the trust company March 2,

(208 Pa. 1) 1903.

MURRAY et al. v. LOWRIE. “(6) Demand for the reconveyance of the (Supreme Court of Pennsylvania, Jan. 4, trust property having been refused, this bill

1904.) was filed.

WILL-CONSTRUCTION-NATURE OF ESTATE. “(7) The testimony shows that the trust 1. Testator gave an estate in fee simple to deed was executed by Mr. and Mrs. Fry aft

his daughter, and by codicil he provided that

any interest his said daughters, or either of er she had read the same executed in good

them, should take in his estate, should be free faith, for the clear and unmistakable trust from any liabilities of the debts of the huspurposes therein expressed. There was not

band. Held not to cut down the estate in fee a shadow of evidence that fraud or coercion

simple given by the will to a separate use trust. induced its execution. Nor is there any evi- Appeal from Court of Common Pleas, Alledence that from the execution and delivery gheny County. of the trust deed in June, 1897, to the date Action by John S. Murray and Catherine of the revocation instrument of March 2, M. Murray against A. L. Lowrie. Judgment 1903, Mr. and Mrs. Fry, or either of them,

for plaintiffs, and defendant appeals. Afever questioned the meaning, force and act

firmed. ive power of the trust.

Argued before MITCHELL, O. J., and

DEAN, FELL, BROWN, MESTREZAT, and Conclusions of Law.

POTTER, JJ. "That the trust deed was deliberately exe- Ralph Longenecker, for appellant. John cuted by Mr. and Mrs. Fry, with ample time P. Hunter and George D. Riddle, for appelto consider the purposes in contemplation, lees. and delivered by them to the trust company without solicitation upon its part, cannot BROWN, J. After making several befor a moment be doubted. A solemn instru- quests, R. B. Mowry, by the eleventh clause ment thus created is not lightly to be set in his will, gave his daughter Catherine M. aside, but only on strong and convincing rea- Murray one-seventh of his estate in fee simsons—reasons that in this case are wholly ple. The provision in his codicil by which absent.

the appellant contends this estate was cut "The deed creates an active and a sepa- down to a separate use trust is: "It is my rate use trust. That it is an active trust will and I hereby direct that any and all inis too clear to require the citation of authori- terests my said daughters or either of them ties. That it is a separate use trust is ruled may take in my estate shall inure to them by Twining's Appeal, 97 Pa. 36. In the free from any and all liabilities of the debts language of the opinion in that case: “Το of any husband either of them may now have grant the prayer of the plaintiff would, nec- or hereafter take and likewise free from the essarily, be upon a principle that the whole control of such husband.” Without the words fund could be disposed of by agreement of in the codicil, the interest of Mrs. Murray in the parties. That principle would enable the her deceased's father's estate would have husband to influence the wife to destroy the passed to her free from any liability for the trust created for her use. There is no differ- debts of her husband, and free from any ence in legal effect between this trust and one control by him over it. Since the act of 1848, created by will or deed of a parent for use of a devise in fee simple to a married woman a married daughter. If the beneficiary of the passes to her an absolute estate, free from trust can defeat it by agreement while the rea- liability for her husband's debts, and his consons for its creation exist, it is worthless. The trol over it, unless she sees fit to so subject validity of trusts like this is too well set- it. The testator was not a lawyer, and, tled to be overthrown, save by legislative though an intelligent man, as we may fairly power.'

gather from his will, written by himself, he "Until the death of her husband (Oraig may not have known that nothing more was H. Fry) who joined in the execution of the needed than the absolute devise to his daugh. ter to preserve what he gave her from the sonal property. That question was not before debts and control of her husband; and, out the court, and cannot be regarded as having of abundant caution, he may have deemed it been passed upon.

In Lewis v. Bryce, the necessary to add the clause in the codicil. testatrix devised land to her three daughters If his intention to lessen the absolute estate (naming them) "during their lives, to be to a separate use, and to deprive his daugh- equally divided between them under the conter of the power of alienation, could be gath- dition that they shall hold the same excluered from other portions of his will, we sively and free from all control of their hus. might hold that the words in the codicil are bands or any of them; said property to deappropriate and sufficient for that purpose. scend and be inherited by said daughters' But no such intention appears, and the children and their heirs forever." It was de words, standing alone, have no other effect cided that the daughters took an estate for than to repeat the testator's intention to life, only; and, after so holding, it is true, give his daughter a seventh interest in his our late Brother McCollum did add that a estate, to her, “her heirs and assigns forev- separate use trust had been created for the er.” No trust is even suggested in the will daughters, relying expressly upon the followor codicil, and she took her interest in her ing authorities: MacConnell v. Lindsay, 131 father's estate subject only to her own con- Pa. 476, 19 Atl. 306; MacConnell v. Wright, trol and disposal of it by deed, when joined 150 Pa. 275, 24 Atl. 517; Hays v. Leonard, by her husband. Ringe v. Kellner, 99 Pa. 155 Pa. 474, 26 Atl. 664; Keating v. McAdoo, 460, is conclusive that the judgment of the 180 Pa. 5, 36 Atl. 218. We have just shown court below was right. In that case the that the last case has been misunderstood, testator said: “It is also my will that my and the other three cannot be regarded as daughters have and hold their share of in- authority for what appears in Lewis P. heritance in their own name and not let it Bryce. In MacConnell v. Lindsay and Macbe controlled by their respective husbands, Connell v. Wright, the testatrix devised "aband the husbands not inherit it unless there solutely and in fee simple,

free is no child living;" and we held: "It will from the control of her present or future husbe observed that no use estate is given in band, and without any liability for any debts, words, and no trust of any kind is created. liabilities or engagements of such husband, Indeed, it is directed expressly that the prop- hut wholly for her own use and benefit, and erty shall be held by the daughters in their subject to her own control"; and in Hays v. own names, which excludes the idea of a Leonard the devise was “to have and to hold trust. The direction that the husbands shall the said premises with the appurtenances to not control the estate is simply an expression her sole and separate use, free from the inof the legal state of the title under the act terference or control of her husband, and to of 1818, and the result would be precisely | her heirs and assigns forever.” the same if these words were not in the will. The judgment in this case must be, and It would be straining the meaning of the last therefore is, affirmed. words of the clause very greatly, indeed, to hold that they created the technical estate known as an estate for the sole and separate

(207 Pa 589) use of a married woman, with its peculiar and undesirable incidents.

We are

SIMMONS v. SOUTHERN TRACTION CO. clear, therefore, that the words of the clause (Supreme Court of Pennsylvania. Jan, 4, of the will above quoted, and upon which

1904.) alone the contention of the defendant is INJURY TO EMPLOYÉ--ASSUMPTION OF RISK. based, cannot operate to create an estate for 1. An employé contracting for the perform. the use of tbe daughters only." To the same

ance of hazardous duties assumes a risk incieffect is the later case of Bailey v. Allegheny

dent to the obvious dangers, thereof.

2. Where a motorman on a single-track road National Bank, 104 Pa. 425.

was injured, while attempting to replace at The two cases upon which counsel for ap- night the trolley, which had slipped from the pellant seems to place great reliance are Kea

wire, thereby extinguishing the lights of the ting v. McAdoo, 180 Pa. 5, 36 Atl. 218, and

car, by being struck by the following car, it

was the result of the risks of the employment, Lewis v. Bryce, 187 Pa. 362, 41 Atl. 275. In for which defendant was not liable, though the the first, the present chief justice did not single track was operated without signals. even hold that a separate use trust had been

Appeal from Court of Common Pleas, Alcreated as to the personal property. What

legheny County. be said in holding that the devise of the real

Action by James Simmons against the estate was a fee, and not merely of a life es

Southern Traction Company. From an order tate, was that the following words were suf

refusing to take off a nonsuit, plaintiff apficient to create a trust, if such was the tes

peals. Affirmed. tator's intention: "The estate which I have

Argued before MITCHELL, C. J., and bequeathed to my said daughters, Rebecca

DEAN, FELL, BROWN, MESTREZAT, and and Martha, shall not be liable to the debts,

POTTER, JJ. nor subject to the control of their respective husbands;" adding that, if any separate use

( 1. See Master and Servant, vol. 34, Cent. Dig.' & trust was created, it was confined to the per- 622.

Frank M. McKelvey and Joseph A. Mc- engineer who had been employed on the road Donald, for appellant. James C. Gray and six weeks was not allowed to recover, where Clarence Burleigh, for appellee.

his injury was caused by striking his head

against the side of a bridge which was dan. FELL, J. The plaintiff was employed as gerously near the side of the passing cab, a conductor on a branch of the defendant's and two or three feet nearer than was usual road which extended from Pittsburg to the in the case of the other bridges on the road. borough of Sheraden. There were two tracks To the same effect are the decisions in Belon most of the branch roads, but in the bor- lows v. Pennsylvania, etc., Canal & Railroad ough and in one or two other places there Co., 137 Pa. 51, 27 Atl. 685, and Fletcher v. was only a single track. On the evening of Philadelphia Traction Co., 190 Pa. 117, 42 the accident the plaintiff was in charge of Atl. 527. In the latter case a conductor faan extra car or tripper, which ran between miliar with the road was killed while standregular cars. While the car was on the sin- ing on the side step or running board of an gle track in the borough, the trolley slipped open summer car, and engaged in putting from the feed wire, the car stopped, and its down curtains during a thunderstorm, by belights were extinguished. The plaintiff got ing struck by a car on the other track. The down on the track in order to replace the tracks were only 37 inches apart, and the trolley, and while standing back of his car conductor's experience had been in running he was struck and injured by the car that closed cars, and he had had no warning or followed it. He had been in the employ of instruction as to open cars. the company, running extra cars on this part The judgment is affirmed. 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 hap

(207 Pa. 620) pened not to be burning.

McGARY et al. v. MCDERMOTT. In support of his contention that proper appliances had not been furnished, the plain

(Supreme Court of Pennsylvania. Jan. 4, tiff made an offer to show that, by the rules

1904.) of the company, only one car was allowed to SPECIFIC PERFORMANCE-CONSIDERATION OF be on the single-track extension at a time;

DEED-PAROL EVIDENCE-ANSWER. that no signal box or other appliance was

1. On a bill for specific performance of a placed at the end of the double track to warn

contract to deliver two judgment notes in con

sideration of a conveyance to defendant of an motormen that the single track was occupied, interest in land, plaintiff can show that the conand no schedule was in use for extra cars; sideration named in the deed was not the only and that signal boxes or other appliances

consideration for the conveyance.

2. Where a responsive answer is filed to a bill, were in general use, and were necessary to

it must be overcome by the testimony of two avoid accidents where schedules failed to witnesses, or of one witness with corroborating provide for such single-track use. This of


3. Parol evidence is admissible of a greater fer was overruled, and a nonsuit entered. If

consideration than one named in the deed, if the testimony offered had been admitted, it not directly inconsistent with the deed. would not have made out a case entitling the plaintiff to go to the jury. Whatever

Appeal from Court of Common Pleas, Aldanger there was in the use of the single legheny County, track without signals was obvious, and as

Bill by Elizabeth McGary and others, by fully known to the plaintiff before as after

their next friend, Elizabeth McGary, against

John J. McDermott. From a decree dismissthe accident, and the risk was voluntarily assumed by him. In Brossman v. Lehigh Val

ing the bill, plaintiffs appeal. Affirmed. ley Railroad Co., 113 Pa. 490, 6 Atl. 226, 57 The following is the opinion of the court Am. Rep. 479, a brakeman who had been below (Rodgers, J.): employed by the railroad company for six “This bill was filed by Elizabeth McGary months, and whose duties required him to be and Margaret C. McGary and Mary E. Mcon the top of box cars, was injured by strik- Gary, minors, by their next friend, Elizabeth ing a bridge which was only four or five feet | McGary, against John J. McDermott, for speabove the tops of the cars. Others had been cific performance of an alleged agreement by injured before in this way. In holding that defendant, made in consideration of the conthere could be no recovery, it was said: veyance by the said Elizabeth McGary to "When an employé, after having an oppor- him of an interest in a certain lot in the city tunity to become acquainted with the risks of Pittsburg, to execute and deliver unto of his situation, accepts them, he cannot W. H. McGary, trustee for said minor chilcomplain if subsequently injured by such ex- dren, two judgment notes, in the sum of posure. By contracting for the performance $1,000, each containing the usual waivers of hazardous duties, he assumes such risks and provisions, and being payable at the atas are incident to their discharge, from caus- tainment of majority of said minors, respeces open and obvious, the dangerous character tively; said bill praying for an injunction of which causes he has had opportunity to against the defendant from incumbering or ascertain." In Fulford v. Lehigh Valley Railroad Co., 185 Pa. 329, 39 Atl. 1115, au 3. See Evidence, vol. 20, Cent. Dig. $ 1913.

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disposing of, in any way, said land; or any Argued before MITCHELL, C. J., and part thereof.

DEAN, FELL, BROWN, MESTREZAT, and “(1) Prior to November 13, 1899, John J. POTTER, JJ. McDermott, defendant, was the owner of a

Harry M. Scott and Elmer C. Bown, for certain lot situated in the city of Pittsburg,

appellants. R. S. Martin and Jere Carney, fronting nineteen and nine-tenths feet on

for appellee. Third avenue, and thence extending back, preserving the same width throughout, seven- FELL, J. The bill fled in this case was ty-two feet to an alley. On November 13,

for the specific performance of a contract 1889, said McDermott conveyed said lot alleged to have been made by the defendant through a proceeding to his wife, Mary Jane to execute and deliver two judgment notes McDermott, for a nominal consideration. in consideration of the conveyance to him of

"(2) Said Mary Jane McDermott died in- an interest in land. It was competent for testate and without issue on January 10, 1889,

the plaintiff to show that the consideration whereupon the said realty descended to and

named in the deed was not the only considvested in her heirs at law, to wit, her bus- eration for the conveyance. The receipt in band, John J. McDermott, defendant; her a deed is only presumptive evidence of the father, George McNally, Sr.; her brothers,

real consideration, and it may be overcome George McNally, Jr., Thomas McNally, Rich

by parol evidence of another or greater conard McNally, and Edward McNally; and her sideration, if not directly inconsistent with sister, Elizabeth McGary, plaintiff.

the deed. Jack v. Dougherty, 3 Watts, 151; "(3) On April 8, 1889, John J. McDermott,

Buckley's Appeal, 48 Pa. 491, 88 Am. Dec. defendant, procured a quitclaim deed for said 468; Lewis v. Brewster, 57 Pa. 410; Henry premises from the said brothers and sis

v. Zurflieh, 203 Pa. 440, 53 Atl. 243. The ters of his deceased wife, but procured no proceeding, however, being in equity, the rule conveyance of the interest of George McNal

obtained that the effect of a responsive anly, Sr., her father. The consideration named

swer can be overcome only by the testimony in said quitclaim deed was $1. Said deed

of two witnesses, or of one witness and coris of record in the office of the recorder of

roborating circumstances. On the vital quesdeeds in and for the county of Allegheny,

tion whether there had been an agreement in Deed Book, vol. 1027, p. 178.

for an additional consideration, the require“(4) It is claimed, and testimony was pro- ments of this rule were not met to the satisduced to the effect, that the real considera

faction of the learned judge who heard the tion for the conveyance of the interest of

witnesses. We are not convinced that there Elizabeth McGary, plaintiff, by said deed,

was any error in this finding. was that John J. McDermott, the defendant,

The decree dismissing the bill is affirmed agreed to execute and deliver unto W. H.

at the costs of the appellants. McGary, trustee, two judgment notes, of $1,000 each, bearing interest at the rate of six per centum per annum, containing the

(208 Pa. 5) usual waivers and provisions, and being pay.

CRAWFORD et al. v. FOREST OIL CO. able at the attainment of majority of the

(Supreme Court of Pennsylvania. Jan. 4, said Margaret C. McGary and Mary Eliza

1904.) beth McGary, respectively, minor children of

WILL CONSTRUCTION-NATURE OF ESTATEthe said Elizabeth McGary. We are not sat

OIL LEASE-TRESPASS-DAMAGES. isfied with the testimony produced in support 1. Testator devised certain real estate to his of this claim, and find that, while there were

son "and to his children" with a direction that evidently some negotiations to that end, the

the son should pay certain legacies. Held to

vest in the son a life estate, and an estate in minds of the parties did not meet in that remainder in the children of the son living at particular.

testator's death. "1. There being a consideration stated in

2. Where a tenant under an oil lease from a

life tenant continues to take oil after the death the quitclaim deed, a contemporaneous parol of the life tenant, he is liable to the remainderagreement for a different consideration, in- man in trespass. ducing the execution of the deed, must be es

3. The measure of damages for one unlawtablished by clear, precise, and indubitable

fully taking oil from plaiutiff's land is the dif.

ference between what it sells for in the market testimony, which was not produced in this and the cost of production. case.

Appeal from Court of Common Pleas, “2. The responsive answer of defendant,

Washington County. denying the alleged contract, must be over

Action by Thomas L. Crawford and others come by the testimony of two witnesses, or

against the Forest Oil Company. Judgment its equivalent. The only witness to the

for plaintiffs, and defendant appeals. Aftransaction, W. H. McGary, was not, in our

firmed. opinion, sufficiently corroborated. “3. Under the facts as found, and in view

The following is the opinion of the court of the conclusions of law, we are of opinion

below (McIlvaine, P. J.): that plaintiff's bill should be dismissed at

"From the pleadings and testimony taken, plaintiff's costs. Let a decree be drawn

3. See Mines and Minerals, vol. 34, Cent. Dig. 8 accordingly."


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