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time. This condition of these two surveys was Eighth and ninth assignments.—The judge in absolutely fatal to the plaintiff's case, since his a considerable portion of the charge immediately claim was for land lying between these two preceding the parts complained of in these aslines, and required them to be a wide distance signments, had pointed out certaiu material disapart. Surely, if such a location as was indi- crepancies between the survey of the Bunn as cated by the returns of the Bollman and the located by the plaintiff, and the return of survey Bunn was to be defeated by opinions and theo- made by Piper. No exception is taken to this ries, whether in whole or in part, it was essen- part of the charge, and an examination of the tial that those opinions and theories should be testimony proves it to be a correct presentation supported by facts and by facts clearly estab- of the matters therein developed. This being lished. We think this is the fair construction so, it seems to us very natural and appropriate of all that the court said in this connection. for the judge to present the suggestions and inWhat was said about the effect of surveyors' quiries contained in the portions assigned for opinions generally must be taken as relating to error. We have not been able to discover any the same subject-matter, and not as a declaration satisfactory answers to them and the learned that the opinion of a surveyor is of no value, counsel for the plaintiff do not indicate any. even as to matters of opinion only, except when We think they overestimate the language of the based upon facts actually proved to exist.

court as being an attack upon their witnesses, All this is true of the sixth assignment, which or as being charged with feeling or heat. is of kindred character. What was said about Tenth assignment.-The learned judge had the number of witnesses and the weight to be just said that both sides claimed that the call attached to or withheld from their testimony, for “surveyed land” on the west was filled by is entirely correct. The remarks in question their respective locations, one by the Sipes and were not made about any particular part of the the other by the Chevington, and that the Chevcase. On the contrary, they were general in ington was considered a lost survey. Of course their character, and were in immediate con- | if the Chevington was an obscure or lost or unnection with, and a part of, general suggestions certain survey, it would be natural that Piper, to the jury respecting the importance and com- | eleven years afterward, in surveying the Bund, plicated character of the case, and the nature of should simply call for it as "surveyed land." the duties devolving upon them. These latter The same would be true of the Sipes' survey if constitute the substance of the fifth assignment, it was of the same character, but there was no which certainly is without merit. The court allegation that it was. On the contrary, it apmade no reflection upon counsel on either side.pears to have been a well known survey without The remark in relation to counsel refers to those question as to its lines. The judge did not say on both sides, and was in no degree derogatory there was any evidence that Piper had ever seen to either.

the draft of the Sipes' survey, or knew the surAlthough the seventh assignment is pressed vey by that name, but he did say that if Piper with earnestness, we see no substantial merit knew it and intended to adjoin it, he would in it. It consists of three sentences of the charge, naturally have named it as an adjoiner, and that the correctness of the first of which is not it would be singular if he did not. This is all even questioned. In the second the court used true, and the court might well have completed the word “dare," when perhaps "should” or the inferential process by adding that if the “maywould have been more suitable, and Sipes' survey was unknown to Piper, he would, alluded to the fact that some of the surveyors in that event, also have called for it as “surseemed to have assumed that Piper had neg- veyed land." It probably did not occur to lected his duty or made mistakes. In the third the judge to present this additional hypothesentence the judge said that Piper probably sis, simply because the well known and well knew more about surveying than some of the marked character of the Sipes' survey seems to witnesses who had ventured opinions. While have been taken for granted throughout the this remark may have been entirely correct, in trial. Full fairness would have been subserved fact we think it was uncalled for and inappro- by the addition we have suggested, but we can priate. But that does not make it error. It not say its omission was error. was at best the expression of a probability, the Eleventh assignment. — We think the learned plaintiff's witnesses were not named or neces- counsel for the plaintiff have placed a more exsarily referred to, and the subject was not ma-treme construction upon the language of the terial. It cannot fairly be regarded as an attack charge here complained of, than was intended upon the plaintiff's witnesses, as is contended by the court, or than can be fairly in ferred froni in the argument.

the words used and the context. We do not understand the court as saying that it was not The block was a tangible, visible substance, and possible in any circumstances to detach the Boll- was itself given in evidence. Of course every man from the Bunn because both surveys called juror was at liberty to count it, as were also all for the lane improvement. The judge was evi- the counsel and the judge, each of whom could dently meeting and answering the argument state the result of his own count. What the that the Bunn adjoined the Jane because the actual count was remained for the jury to deBunn survey called for the lane, by the reply termine. We cannot say the judge was in error, that the same reason would carry the Bollnian when he said he could count 75 growths, as the also to the lane, since that survey called for the block is not before us, and if he stated the facts lane on a mere continuation of the same line correctly he certainly committed no error. which on the Bunn survey called for it. A Fourteenth assignment.--As the oral statemere inspection of the two returns of survey | ments and arguments of counsel on the trial, proves this to be entirely correct, and we are are not printed, and are no part of the record, quite clear that this is the true interpretation of it is, of course, impossible for us to say that the the language of the charge. The question was court was in error in saying that it was insisted what was Piper's meaning in calling for the on either side that the block, in dispute as to its lane on the Bunn survey? If he certainly and genuineness, should be opened. We assume absolutely meant that the lane did adjoin the that in fact it was not opened, as no contrary Bunn on the line 55 E. as indicated on the allegation is now made. draft, then he did just as certainly and abso Fifteenth assignment.--The testimony quoted lutely mean that the lane also adjoined the Boll- in support of this assignment does not convict man on its line N. 55 E., as the latter was a the court, in our judgment, of either suppresmere continuation of the former. The next two sion or perversion, of evidence. None of it goes succeeding sentences of the charge clearly prove to 1806, or indicates that the improvement coythis to have been the meaning of the judge, and ered more than a quarter of an acre. As to its these are not assigned for error. The language going beyond 1835, the assignment cuts in two covered by the twelfth assignment demonstrates the sentence of the charge on that subject, and that the court did not say or mean to say, that alleges error in the first clause, but not in the the Bunn could not possibly be shifted without second. Now, the second clause supplies what also shifting the Bollman, because that very appears to be claimed as the error of the first, to question is there presented. Thus, the learned wit, an implication that the evidence of this judge says: “If then the call for the Bollman improvement does not go back of 1835. The is the stronger and governing call, the next ques- part assigned as error is in these words, “the tion is, is it controlled by definite and clearly earliest evidence is in 1835." The remainder of marked lines on the ground which will carry the sentence, which is not assigned, says, “then the survey away from the Bollman and abut Long, who first saw it at the time, says it was it on the lane?" He then adds, that if the jury an old looking building, a story and one-half cannot give the survey all its calls, and if the high, with a door in it, and used by a man call for surveyed land on the west is better filled named Snow, who was engaged in coaling," etc. by the Chevington than the Sipes, “then there Sixteenth and twentieth assignments.-We remains the question whether the plaintiff has cannot say there is error in the statement, “it found marks which must control the return of is by no means sure that roads and streams are survey, govern the case, and draw this tract not quite as important as trees." *** "They over to the lane and away from the Bollman." may be better." The relative value of these There is not only no error in this, but it is con- indications would depend largely upon their clusive proof that the portion of the charge greater or less correspondence, in the given case, covered by the eleventh assignment is not prop- with their representations on the official survey. erly subject to the criticism made upon it. | In the present case it must be confessed there

Thirteenth assignment.The judge did not | is great difficulty in reconciling the road and say that the chestnut block counted 75 growths, stream appearing on the official survey of the or give any direction to the jury that they Bunn, with the survey of the same tract as the should so regard it. On the contrary, he ex- plaintiff locates it. Again, trees may not be pressly told them that there was great conflict always marked, so as to speak with absolute of testimony in regard to the block, and that certainty, and there is often grave question as they could take them and count them. He to the identity of such as are claimed to have added, that he had counted only one of them, | received the original marks. Of course an inand that he could count 75 growths on that one, terior stream is of less importance than a bounand that there was no obscurity of growth in it. dary stream, but that consideration does not

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establish error in the remarks covered by these

BIDDLE'S APPEAL. assignments.

Seventeenth assignment. We think the con- In the construction of a will the intention of the testator cluding sentence of the language here com

should govern whenever that intention is clearly mani.

fested, and is not in conflict with established principles plained of might well have been omitted. While

of law. the sentiment it contains may be a legitimate Testator devised all his property in trust to pay certain deduction from the precedent reasoning, we

annuities, and after the annuitant's death to pay over think it lacks the dispassionate calmness with

the estate to the Pennsylvania Hospital. Held, revers.

ing the court below, that although the testator's estate which, as a general rule, judicial utterances

yielded an income largely in excess of what was necesshould be made. The expression, “quintes

sary to pay the annuities, the trustees should retain the sence of stupidity," might have been clad in whole estate, as it was not to be paid over to the hoschoicer phrase, but that is a matter of taste.

pital by the terms of the will till after the decease of

the annuitants. However these things may be, the substance of

Appeal of John W. Biddle et al., Executors of this portion of the charge is within the warrant

Alexander J. Derbyshire, from the decree of the of the testimony. The judge was commenting A upon the feature of the case developed by the

Orphans' Court of Philadelphia county. lane improvement. This also was surveyed by Opinion by MERCUR, J. Filed October 2, 1882. William Piper, in 1809, three years after he sur- It is a cardinal rule in the construction of a veyed the Bunn. His return does not call for will that the intention of a testator shall govern the Bunn on the north, but for Ray's Hill. That whenever that intention is clearly manifested, survey certainly does seem to interfere largely and is not in conflict with established principles with the plaintiff's location of the Bunn. The of law : Findlay v. Riddle, 3 Binn., 149; Midsuggestion that it would make three lines, where dleswarth's Admin'r 1. Blackmore, 24 P. F. one only would be necessary or probable, is of Smith, 414; Schott's Estate, 28 Id., 40. All mere force, and we cannot say it was overestimated technical rules of construction must give way to by the court. The observations relative to the the plainly expressed intention of a testator if line of the Moyer, N. 86 W., do not require that intention be lawful. It is a rule of common comment. It was manifestly and admittedly a sense, as well as of law, not to attempt to conmere error in writing the letter N. for the letter S. strue that which needs no construction : Reck's

Nineteenth assignment.—The judge did not Appeal, 28 Id., 432. The popular meaning of a say that the old dead pine was a corner of the word is the best criterion of the interest of a tesBunn. He simply said, after stating that both tator: Hunter's Estate, 6 Barr, 97. the chestnut and the pine were disputed, that This contention is between the executors and the weight of the evidence was, if Ketterman testamentary trustees of Alexander J. Derby. and Sams were believed, that the "pine is an old shire on the one side, and the Contributors to marked corner." As these witnesses did so tes- the Pennsylvania Hospital on the other. The tify we see no error in this language of the latter are the residuary devisees. The question charge. We are not referred to any testimony is, whether the time has come which gives them of the plaintiff's surveyors, and have not been a right to demand any portion of the sum so able to find any contradicting the pine as an old devised ? marked corner.

After disposing of certain sums of small We do not think the charge as a whole is amounts, the testator proceeds: “I give, deamenable to the objections of the twenty-first vise and bequeath unto my executors hereinbeassignment. As to the manner of the judge in fore named, and the survivors and survivor of delivering the charge, it is not, and cannot be, them, and the heirs, executors and assigns of before us, and hence we cannot review it. If it such survivor, all the rest, residue and remainwere in truth of the character alleged, which is der of my estate, real and personal, of which I denied, it would certainly be reprehensible, and may be seized and possessed, and to which I may deserving of condemnation by a court of error. | be in any wise entitled at the time of my deIt is rarely that such complaints are made, and cease, and which I have not herein before otherthere ought never to be occasion for them. We wise given, bequeathed and disposed of, with are, however, powerless to afford relief for griev- the appurtenances, to have and to hold the same ances of that kind, by the ordinary method of until my said executors, and the survivors'and assignments of error. Judgment affirmed. survivor of them, and the heirs, executors, ad

For plaintiff in error, Messrs. John Cessna, ministrators and assigns of such survivors, in John H. Jordan and R. M. Speer.

| trust, nevertheless, to and for the uses and purContra, Messrs. Russell & Longnecker, J. S. poses hereinafter mentioned ; that is to say, in Black, T. M. Reynolds and Samuel S. Blair. I trust, inter alia, to let and demise real estate; to collect rents and income; to sell and convey annuities, the court ordered that a portion of real estate; to permit Algemine D. Smith to the principal of the estate be now paid over to occupy certain buildings during her natural life, the hospital. the executors to pay the insurance and taxes. This is assigned for error. thereon; to invest the proceeds of real and per- The portions of the will to which we have resonal estate in safe and reliable securities; to ferred show the whole estate, present and prospay an annuity of $3,000 to Algemine D. Smith; pective, to be given to the executors upon trusts one of $800 to Caroline Derbyshire; another of clearly defined. They are to hold and manage $600 to Eliza Ann Henzey, and to Alexander J. | the whole estate existing at the death of the Derbyshire, Jr., the sum of $1,000, when he testator, and also the subsequent accumulations. sball arrive at and if he shall live to the full age. They are to collect the rents and profits; sell of twenty-one years.' And in trust further, lands; invest proceeds of lands and all unex.and my said executors are hereby directed, pended funds coming to their hands; pay the after the decease of the said Algemine D. Smith, taxes and insurance on the buildings devised to Caroline Derbyshire and Eliza Ann Henzey, Algemine D. Smith for her life; keep the same and of the said Alexander J. Derbyshire, Jr., in repair, and, in case of destruction by fire, rebefore his arrival at the age of twenty-one years, build them. to convey, assign, transfer, set over and pay The specific direction to invest the accumulaover unto the Contributors to the Pennsylvania tions clearly assumes a probable increase of the Hospital, their successors and assigns, for the estate during the life of the annuitants; yet charitable uses of said institution, all the rest, there is no intimation, either expressed or imresidue and remainder of my estate, real and plied, that prior to their death any portion personal, and of the income, rents, issues, profits thereof shall be given to the hospital. and accumulations thereof which remain in the The transfer or payment to the hospital is not hands of my said executors unsold or undisposed to be made in installments or at different times, of as aforesaid after the decease of the said Alge- but all at one time. It is not to be made until mine D. Smith, Caroline Derbyshire, Eliza "after" the decease of the annuitants, and not Ann Henzey and Alexander J. Derbyshire, Jr., until "after" payment of all charges, taxes, reas aforesaid, and after paying and discharging pairs and insurance; and not until "after" payall my debts and funeral expenses, and all the ment of all charges and expenses incident to annuities, legacies, beguests and sums of money the sale, management and “settlement" of the herein before and hereinafter devised and be-whole estate. “After" every other purpose of queathed or directed to be paid, and after pay- the trust has been fulfilled and satisfied, then, ing for and discharging all the charges, taxes, and not till then, the testator directs a transfer repairs and insurance upon all my estate and be made to the hospital. The trust is active property, real and personal, and all the charges during the life of the annuitants. and expenses incident to the sale, management. It is clearly manifest from the whole context and settlement of my estate and property as of the will that the testator intentionally used aforesaid and as hereinafter mentioned.'” In the word "after" to indicate the time when the a subsequent clause the testator declares, “that hospital should enjoy his bounty. It was not the said several legacies, annuities, bequests and to take subject to previous devises and annuities. sums of money hereinbefore directed to be paid The language did not relate to the death of the shall be paid out of the rents, income, issues testator and import a right to any enjoyment and profits of my estate, so far as the same will before the time designated, as in Lamb v. Lamb, suffice, before any part of the capital or prin- | 11 Pick., 371. That case, as well as Key v. Key, cipal thereof shall be used for that purpose." 4 De Gex., Mac. & Gor., 73; Franks v. Price, 3

All the annuitants are still living, and Alex- Beavan, 182; Massey v. Hudson, 2 Meriv., 130, ander J. Derbyshire, Jr., is under twenty-one and kindred cases, do not apply to the language years of age.

of the will now under consideration. The inThe residuary devise, being in trust for a tent is so clearly expressed that the authority of charitable use and purpose, comes within the no adjudged cause is necessary to give effect to proviso to the 9th section of the Act of 18th of its language. If any be desired, it may be found April, 18.53, and therefore is not within the pro- in Harbin v. Masterman, L. R., 12 Equity, 559. hibitory clause of the section forbidding accum Why, then, shall the clear and explicit direculations after the death of the testator for a term tions of the testator be disobeyed? His right to longer than therein specified.

postpone the time when the hospital shall enjoy As the interest on the whole fund is found to the fruit of his bounty cannot be denied. It be in excess of the sum required to pay all the is not in conflict with any principle of public policy, of religion or morality, and does not in- house and occupied it for twenty months. Then fringe on any statute. Full effect must there she withdrew therefrom, notified the plaintiff, fore be given to the clear intent of the will : paid the rent up to the time, and tendered the Bainbridge's Appeal, 1 Outerbridge, 482. Rea- key, which the plaintiff retained in such a sons satisfactory to the testator induced him to manner as not to release her from liability for withhold all aid from the hospital until the the unexpired portion of the year in case she time when the whole trust of the executors was was legally chargeable therefor. to be determined. In giving construction to The plaintiff claims she was a tenant from this will we need not seek for the motive of the year to year, and seeks to recover rent for four testator. It was not necessary for him to state months after she left the house. The defendit, and he has not. His beneficiaries have no ant alleges she rented by the month, and was right to inquire his reasons for giving at once to not liable beyond the months of her occupancy. some and after a long interval to others.

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The letting was by parol, and the evidence as He may have thought it for the best interests to its terms was conflicting. The learned judge of the hospital to withhold bis aid until he could charged the jury, “if it was a letting for fifty give it the whole residuary fund of his large dollars per month, without anything being said estate. He may have thought its future neces- about a year, then the plaintiff can not recover sities would be greater than the present. In the amount bere claimed." the absence of reasons stated by him, we must The only specification of error is to this not conjecture some and thereby prevent the charge. The plaintiff claims whether the origireasonable and natural meaning of the language nal lease was by the year or by the montb; inused. As was said in Bainbridge's Appeal, su- | asmuch as the defendant held over beyond a pra, the testator may have thought, as the good year, she can be required to pay for the whole man of the house said to the laborer who com- of the second year, although she did not occupy plained of the inequality of payment, “is it not the premises during any part of the last four lawful for me to do what I will with my own?" | months. Had the lease been by the year, the

It is of no consequence that we may think the tenant might be so liable: Diller v. Roberts, 13 testator might well have given a portion of his S. & R., 60; Phillips v. Monges, 4 Wharton, 226; estate to the hospital on his death, or at some Hemphill v. Flin, 2 Barr, 144. All these were earlier period of time than expressed in his wili. cases where the letting was by the year. They He thought otherwise, and the opinion of others recognize a sound principle. Where a landlord as to what he ought to have done cannot be sub- has let specific property by the year, it would stituted for what he did do. His will must con- be manifestly unjust to compel him against his trol. The language thereof is too clear to attempt will to assent to a renewal for such shorter term to construe that which needs no construction, as the will or caprice of his tenant might dictate. We think the learned judge erred in decreeing / If the lessee enters as a tenant by the year, that a portion of the fund be now paid over to and holds over, it is optional with the landlord the Contributors of the Pennsylvania Hospital. | either to treat him as a tenant from year to year They must abide their time.

or as a trespasser: Hemphill v. Flin, supra. Decree reversed at the costs of the appellees, It is true, for some purposes the lessee for any and distribution is ordered to be made conform- certain time less than a year is recognized as a ably with this opinion.

tenant for years: 2 Bi. Com., 140; Shaffer v. For appellants, John G. Johnson, Esq.

Sutton, 5 Binn., 228. Contra, A. Sydney Biddle, Esq.

When, however, we are dealing with the

question of an implied renewal of a tenancy, all HOLLIS v. BURNS.

the terms of the former lease must be considered.

The purpose is not to make a new lease essentiUpon the question of an implied renewal of a tenancy ally different, but to continue the former so far all the terms of the former lease must be considered. as its terms may be applicable. In its very Hence, if a landlord elect to treat one holding over as

nature the implied renewal of a lease assumes a tenant, he thereby affirms the form of tenancy under

a continuation of its characteristic features. which the tenant previously held.

Hence, if a landlord elect to treat one holding Error to the Court of Common Pleas, No. 1,

' over as a tenant, he thereby affirms the form of of Philadelphia county.

tenancy under which the tenant previously Opinion by MERCUR, J. Filed October 2, 1882. held. If that was a tenancy by the month, it

The plaintiff declared in assumpsit on an im- will presumptively so continue. The landlord plied contract for use and occupation of a certain cannot impose a longer term, nor one radically dwelling house. The defendant had rented the different from the former.

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