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time. This condition of these two surveys was absolutely fatal to the plaintiff's case, since his claim was for land lying between these two lines, and required them to be a wide distance apart. Surely, if such a location as was indicated by the returns of the Bollman and the Bunn was to be defeated by opinions and theories, whether in whole or in part, it was essential that those opinions and theories should be supported by facts and by facts clearly established. We think this is the fair construction of all that the court said in this connection. What was said about the effect of surveyors' opinions generally must be taken as relating to the same subject-matter, and not as a declaration that the opinion of a surveyor is of no value, even as to matters of opinion only, except when based upon facts actually proved to exist.

All this is true of the sixth assignment, which is of kindred character. What was said about the number of witnesses and the weight to be attached to or withheld from their testimony, is entirely correct. The remarks in question were not made about any particular part of the case. On the contrary, they were general in their character, and were in immediate connection with, and a part of, general suggestions to the jury respecting the importance and complicated character of the case, and the nature of the duties devolving upon them. These latter constitute the substance of the fifth assignment, which certainly is without merit. The court made no reflection upon counsel on either side. The remark in relation to counsel refers to those on both sides, and was in no degree derogatory to either.

Although the seventh assignment is pressed with earnestness, we see no substantial merit in it. It consists of three sentences of the charge, the correctness of the first of which is not even questioned. In the second the court used the word dare," ," when perhaps "should" or "may" would have been more suitable, and alluded to the fact that some of the surveyors seemed to have assumed that Piper had neglected his duty or made mistakes. In the third sentence the judge said that Piper probably knew more about surveying than some of the witnesses who had ventured opinions. While this remark may have been entirely correct, in fact we think it was uncalled for and inappropriate. But that does not make it error. It was at best the expression of a probability, the plaintiff's witnesses were not named or necessarily referred to, and the subject was not material. It cannot fairly be regarded as an attack upon the plaintiff's witnesses, as is contended in the argument.

Eighth and ninth assignments.—The judge in a considerable portion of the charge immediately preceding the parts complained of in these assignments, had pointed out certain material discrepancies between the survey of the Bunn as located by the plaintiff, and the return of survey made by Piper. No exception is taken to this part of the charge, and an examination of the testimony proves it to be a correct presentation of the matters therein developed. This being so, it seems to us very natural and appropriate for the judge to present the suggestions and inquiries contained in the portions assigned for error. We have not been able to discover any satisfactory answers to them and the learned counsel for the plaintiff do not indicate any. We think they overestimate the language of the court as being an attack upon their witnesses, or as being charged with feeling or heat.

Tenth assignment.-The learned judge had just said that both sides claimed that the call for "surveyed land" on the west was filled by their respective locations, one by the Sipes and the other by the Chevington, and that the Chevington was considered a lost survey. Of course if the Chevington was an obscure or lost or uncertain survey, it would be natural that Piper, eleven years afterward, in surveying the Bunn, should simply call for it as "surveyed land." The same would be true of the Sipes' survey if it was of the same character, but there was no allegation that it was. On the contrary, it appears to have been a well known survey without question as to its lines. The judge did not say there was any evidence that Piper had ever seen the draft of the Sipes' survey, or knew the survey by that name, but he did say that if Piper knew it and intended to adjoin it, he would naturally have named it as an adjoiner, and that it would be singular if he did not. This is all true, and the court might well have completed the inferential process by adding that if the Sipes' survey was unknown to Piper, he would, in that event, also have called for it as "surveyed land." It probably did not occur to the judge to present this additional hypothesis, simply because the well known and well marked character of the Sipes' survey seems to have been taken for granted throughout the trial. Full fairness would have been subserved by the addition we have suggested, but we can not say its omission was error.

Eleventh assignment.-We think the learned counsel for the plaintiff have placed a more extreme construction upon the language of the charge here complained of, than was intended by the court, or than can be fairly inferred from the words used and the context. We do not

understand the court as saying that it was not possible in any circumstances to detach the Bollman from the Bunn because both surveys called for the lane improvement. The judge was evidently meeting and answering the argument that the Bunn adjoined the lane because the Bunn survey called for the lane, by the reply that the same reason would carry the Bollman also to the lane, since that survey called for the lane on a mere continuation of the same line which on the Bunn survey called for it. A mere inspection of the two returns of survey proves this to be entirely correct, and we are quite clear that this is the true interpretation of the language of the charge. The question was what was Piper's meaning in calling for the lane on the Bunn survey? If he certainly and absolutely meant that the lane did adjoin the Bunn on the line 55 E. as indicated on the draft, then he did just as certainly and absolutely mean that the lane also adjoined the Bollman on its line N. 55 E., as the latter was a mere continuation of the former. The next two succeeding sentences of the charge clearly prove this to have been the meaning of the judge, and these are not assigned for error. The language covered by the twelfth assignment demonstrates that the court did not say or mean to say, that the Bunn could not possibly be shifted without also shifting the Bollman, because that very question is there presented. Thus, the learned judge says: "If then the call for the Bollman is the stronger and governing call, the next question is, is it controlled by definite and clearly marked lines on the ground which will carry the survey away from the Bollman and abut it on the lane?" He then adds, that if the jury cannot give the survey all its calls, and if the call for surveyed land on the west is better filled by the Chevington than the Sipes, "then there remains the question whether the plaintiff has found marks which must control the return of survey, govern the case, and draw this tract over to the lane and away from the Bollman." There is not only no error in this, but it is conclusive proof that the portion of the charge covered by the eleventh assignment is not properly subject to the criticism made upon it.

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The block was a tangible, visible substance, and was itself given in evidence. Of course every juror was at liberty to count it, as were also all the counsel and the judge, each of whom could state the result of his own count. What the actual count was remained for the jury to determine. We cannot say the judge was in error, when he said he could count 75 growths, as the block is not before us, and if he stated the facts correctly he certainly committed no error.

Fourteenth assignment.-As the oral statements and arguments of counsel on the trial, are not printed, and are no part of the record, it is, of course, impossible for us to say that the court was in error in saying that it was insisted on either side that the block, in dispute as to its genuineness, should be opened. We assume that in fact it was not opened, as no contrary allegation is now made.

Fifteenth assignment.-The testimony quoted in support of this assignment does not convict the court, in our judgment, of either suppression or perversion, of evidence. None of it goes to 1806, or indicates that the improvement covered more than a quarter of an acre. As to its going beyond 1835, the assignment cuts in two the sentence of the charge on that subject, and alleges error in the first clause, but not in the second. Now, the second clause supplies what appears to be claimed as the error of the first, to wit, an implication that the evidence of this improvement does not go back of 1835. The part assigned as error is in these words, “the earliest evidence is in 1835." The remainder of the sentence, which is not assigned, says, "then Long, who first saw it at the time, says it was an old looking building, a story and one-half high, with a door in it, and used by a man named Snow, who was engaged in coaling," etc.

Sixteenth and twentieth assignments.-We cannot say there is error in the statement, "it is by no means sure that roads and streams are not quite as important as trees." *** “ "They may be better." The relative value of these indications would depend largely upon their greater or less correspondence, in the given case, with their representations on the official survey. 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

establish error in the remarks covered by these assignments.

Seventeenth assignment.—We think the concluding sentence of the language here complained of might well have been omitted. While the sentiment it contains may be a legitimate deduction from the precedent reasoning, we think it lacks the dispassionate calmness with which, as a general rule, judicial utterances should be made. The expression, "quintessence of stupidity," might have been clad in choicer phrase, but that is a matter of taste. However these things may be, the substance of this portion of the charge is within the warrant of the testimony. The judge was commenting upon the feature of the case developed by the lane improvement. This also was surveyed by William Piper, in 1809, three years after he surveyed the Bunn. His return does not call for the Bunn on the north, but for Ray's Hill. That survey certainly does seem to interfere largely with the plaintiff's location of the Bunn. The suggestion that it would make three lines, where one only would be necessary or probable, is of force, and we cannot say it was overestimated by the court. The observations relative to the line of the Moyer, N. 86 W., do not require comment. It was manifestly and admittedly a mere error in writing the letter N. for the letter S. Nineteenth assignment.-The judge did not say that the old dead pine was a corner of the Bunn. He simply said, after stating that both the chestnut and the pine were disputed, that the weight of the evidence was, if Ketterman and Sams were believed, that the "pine is an old marked corner." As these witnesses did so testify we see no error in this language of the charge. We are not referred to any testimony of the plaintiff's surveyors, and have not been able to find any contradicting the pine as an old marked corner.

We do not think the charge as a whole is amenable to the objections of the twenty-first | assignment. As to the manner of the judge in delivering the charge, it is not, and cannot be, before us, and hence we cannot review it. If it were in truth of the character alleged, which is denied, it would certainly be reprehensible, and deserving of condemnation by a court of error. It is rarely that such complaints are made, and there ought never to be occasion for them. We are, however, powerless to afford relief for grievances of that kind, by the ordinary method of assignments of error. Judgment affirmed. For plaintiff in error, Messrs. John Cessna, John H. Jordan and R. M. Speer.

Contra, Messrs. Russell & Longnecker, J. S. Black, T. M. Reynolds and Samuel S. Blair.

BIDDLE'S APPEAL.

In the construction of a will the intention of the testator should govern whenever that intention is clearly manifested, and is not in conflict with established principles of law. Testator devised all his property in trust to pay certain annuities, and after the annuitant's death to pay over the estate to the Pennsylvania Hospital. Held, reversing the court below, that although the testator's estate yielded an income largely in excess of what was necessary to pay the annuities, the trustees should retain the whole estate, as it was not to be paid over to the hos pital by the terms of the will till after the decease of the annuitants.

Appeal of John W. Biddle et al., Executors of Alexander J. Derbyshire, from the decree of the Orphans' Court of Philadelphia county. Opinion by MERCUR, J. Filed October 2, 1882. It is a cardinal rule in the construction of a will that the intention of a testator shall govern whenever that intention is clearly manifested, and is not in conflict with established principles of law: Findlay v. Riddle, 3 Binn., 149; Middleswarth's Admin'r v. Blackmore, 24 P. F. Smith, 414; Schott's Estate, 28 Id., 40. All mere technical rules of construction must give way to the plainly expressed intention of a testator if that intention be lawful. It is a rule of common sense, as well as of law, not to attempt to construe that which needs no construction: Reck's Appeal, 28 Id., 432. The popular meaning of a word is the best criterion of the interest of a testator: Hunter's Estate, 6 Barr, 97.

This contention is between the executors and testamentary trustees of Alexander J. Derbyshire on the one side, and the Contributors to the Pennsylvania Hospital on the other. The latter are the residuary devisees. The question is, whether the time has come which gives them a right to demand any portion of the sum so devised?

After disposing of certain sums of small amounts, the testator proceeds: “I give, devise and bequeath unto my executors hereinbefore named, and the survivors and survivor of them, and the heirs, executors and assigns of such survivor, all the rest, residue and remainder of my estate, real and personal, of which I may be seized and possessed, and to which I may be in any wise entitled at the time of my decease, and which I have not herein before otherwise given, bequeathed and disposed of, with the appurtenances, to have and to hold the same until my said executors, and the survivors and survivor of them, and the heirs, executors, administrators and assigns of such survivors, in trust, nevertheless, to and for the uses and purposes hereinafter mentioned; that is to say, in trust, inter alia, to let and demise real estate; to

annuities, the court ordered that a portion of the principal of the estate be now paid over to the hospital.

This is assigned for error.

The portions of the will to which we have referred show the whole estate, present and prospective, to be given to the executors upon trusts clearly defined. They are to hold and manage the whole estate existing at the death of the testator, and also the subsequent accumulations. They are to collect the rents and profits; sell lands; invest proceeds of lands and all unexpended funds coming to their hands; pay the taxes and insurance on the buildings devised to Algemine D. Smith for her life; keep the same in repair, and, in case of destruction by fire, re

The specific direction to invest the accumulations clearly assumes a probable increase of the estate during the life of the annuitants; yet there is no intimation, either expressed or implied, that prior to their death any portion thereof shall be given to the hospital.

collect rents and income; to sell and convey
real estate; to permit Algemine D. Smith to
occupy certain buildings during her natural life,
the executors to pay the insurance and taxes
thereon; to invest the proceeds of real and per-
sonal estate in safe and reliable securities; to
pay an annuity of $3,000 to Algemine D. Smith;
one of $800 to Caroline Derbyshire; another of
$600 to Eliza Ann Henzey, and to Alexander J.
Derbyshire, Jr., the sum of $1,000, when he
shall arrive at and if he shall live to the full age
of twenty-one years.' And in trust further,
and my said executors are hereby directed,
after the decease of the said Algemine D. Smith,
Caroline Derbyshire and Eliza Ann Henzey,
and of the said Alexander J. Derbyshire, Jr., |
before his arrival at the age of twenty-one years, | build them.
to convey, assign, transfer, set over and pay
over unto the Contributors to the Pennsylvania
Hospital, their successors and assigns, for the
charitable uses of said institution, all the rest,
residue and remainder of my estate, real and
personal, and of the income, rents, issues, profits
and accumulations thereof which remain in the
hands of my said executors unsold or undisposed
of as aforesaid after the decease of the said Alge- |
mine D. Smith, Caroline Derbyshire, Eliza
Ann Henzey and Alexander J. Derbyshire, Jr.,
as aforesaid, and after paying and discharging
all my debts and funeral expenses, and all the
annuities, legacies, bequests and sums of money
hereinbefore and hereinafter devised and be-
queathed or directed to be paid, and after pay-
ing for and discharging all the charges, taxes,
repairs and insurance upon all my estate and
property, real and personal, and all the charges
and expenses incident to the sale, management
and settlement of my estate and property as
aforesaid and as hereinafter mentioned.'" In
a subsequent clause the testator declares, "that
the said several legacies, annuities, bequests and
sums of money hereinbefore directed to be paid
shall be paid out of the rents, income, issues
and profits of my estate, so far as the same will
suffice, before any part of the capital or prin-
cipal thereof shall be used for that purpose."

All the annuitants are still living, and Alexander J. Derbyshire, Jr., is under twenty-one years of age.

The residuary devise, being in trust for a charitable use and purpose, comes within the proviso to the 9th section of the Act of 18th of April, 1853, and therefore is not within the prohibitory clause of the section forbidding accumulations after the death of the testator for a term longer than therein specified.

As the interest on the whole fund is found to be in excess of the sum required to pay all the

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The transfer or payment to the hospital is not to be made in installments or at different times, but all at one time. It is not to be made until "after" the decease of the annuitants, and not until "after" payment of all charges, taxes, repairs and insurance; and not until "after" payment of all charges and expenses incident to the sale, management and "settlement" of the whole estate. "After" every other purpose of the trust has been fulfilled and satisfied, then, and not till then, the testator directs a transfer be made to the hospital. The trust is active during the life of the annuitants.

It is clearly manifest from the whole context of the will that the testator intentionally used the word "after" to indicate the time when the hospital should enjoy his bounty. It was not to take subject to previous devises and annuities. The language did not relate to the death of the testator and import a right to any enjoyment before the time designated, as in Lamb v. Lamb, 11 Pick., 371. That case, as well as Key v. Key, 4 De Gex., Mac. & Gor., 73; Franks v. Price, 3 Beavan, 182; Massey v. Hudson, 2 Meriv., 130, and kindred cases, do not apply to the language of the will now under consideration. The intent is so clearly expressed that the authority of no adjudged cause is necessary to give effect to its language. If any be desired, it may be found in Harbin v. Masterman, L. R., 12 Equity, 559.

Why, then, shall the clear and explicit directions of the testator be disobeyed? His right to postpone the time when the hospital shall enjoy the fruit of his bounty cannot be denied. It is not in conflict with any principle of public

she withdrew therefrom, notified the plaintiff, paid the rent up to the time, and tendered the key, which the plaintiff retained in such a manner as not to release her from liability for the unexpired portion of the year in case she was legally chargeable therefor.

policy, of religion or morality, and does not in-house and occupied it for twenty months. Then fringe on any statute. Full effect must therefore be given to the clear intent of the will: Bainbridge's Appeal, 1 Outerbridge, 482. Reasons satisfactory to the testator induced him to withhold all aid from the hospital until the time when the whole trust of the executors was to be determined. In giving construction to this will we need not seek for the motive of the testator. It was not necessary for him to state it, and he has not. His beneficiaries have no right to inquire his reasons for giving at once to some and after a long interval to others.

He may have thought it for the best interests of the hospital to withhold his aid until he could give it the whole residuary fund of his large estate. He may have thought its future necessities would be greater than the present. In the absence of reasons stated by him, we must not conjecture some and thereby prevent the reasonable and natural meaning of the language used. As was said in Bainbridge's Appeal, supra, the testator may have thought, as the good man of the house said to the laborer who complained of the inequality of payment, "is it not lawful for me to do what I will with my own?" It is of no consequence that we may think the testator might well have given a portion of his estate to the hospital on his death, or at some earlier period of time than expressed in his wili. He thought otherwise, and the opinion of others as to what he ought to have done cannot be substituted for what he did do. His will must control. The language thereof is too clear to attempt to construe that which needs no construction. We think the learned judge erred in decreeing that a portion of the fund be now paid over to the Contributors of the Pennsylvania Hospital. They must abide their time.

Decree reversed at the costs of the appellees, and distribution is ordered to be made conformably with this opinion.

For appellants, John G. Johnson, Esq.
Contra, A. Sydney Biddle, Esq.

HOLLIS v. BURNS.

The plaintiff claims she was a tenant from year to year, and seeks to recover rent for four months after she left the house. The defendant alleges she rented by the month, and was not liable beyond the months of her occupancy. The letting was by parol, and the evidence as to its terms was conflicting. The learned judge charged the jury, "if it was a letting for fifty dollars per month, without anything being said about a year, then the plaintiff cannot recover the amount here claimed."

The only specification of error is to this charge. The plaintiff claims whether the original lease was by the year or by the month; inasmuch as the defendant held over beyond a year, she can be required to pay for the whole of the second year, although she did not occupy the premises during any part of the last four months. Had the lease been by the year, the tenant might be so liable: Diller v. Roberts, 13 S. & R., 60; Phillips v. Monges, 4 Wharton, 226; Hemphill v. Flin, 2 Barr, 144. All these were cases where the letting was by the year. recognize a sound principle. Where a landlord has let specific property by the year, it would be manifestly unjust to compel him against his will to assent to a renewal for such shorter term as the will or caprice of his tenant might dictate.

They

If the lessee enters as a tenant by the year, and holds over, it is optional with the landlord either to treat him as a tenant from year to year or as a trespasser: Hemphill v. Flin, supra.

It is true, for some purposes the lessee for any certain time less than a year is recognized as a tenant for years: 2 Bl. Com., 140; Shaffer v. Sutton, 5 Binn., 228.

When, however, we are dealing with the question of an implied renewal of a tenancy, all the terms of the former lease must be considered. The purpose is not to make a new lease essenti

Upon 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. Hence, if a landlord elect to treat one holding over as a tenant, he thereby affirms the form of tenancy under which the tenant previously held.

Error to the Court of Common Pleas, No. 1, of Philadelphia county.

Opinion by MERCUR, J. Filed October 2, 1882. The plaintiff declared in assumpsit on an implied contract for use and occupation of a certain dwelling house. The defendant had rented the

as its terms may be applicable. In its very nature the implied renewal of a lease assumes a continuation of its characteristic features. Hence, if a landlord elect to treat one holding over as a tenant, he thereby affirms the form of tenancy under which the tenant previously held. If that was a tenancy by the month, it will presumptively so continue. The landlord cannot impose a longer term, nor one radically different from the former.

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