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mon Pleas. These investments were $10,000 in that it was not supervised by any other officer, City sixes, and $50,000 in certain mortgages. nor by the directors, or the committee on In 1873 and 1875 the trustee changed the invest- | finance, or any other committee. ments, and charged $535, a commission of one That upon foreclosure of the mortgages the per cent. on $53,500 on reinvestment of mort-properties were conveyed by the sheriff to one gages. No notice of the change of investment of the clerks of the company, who conveyed was given to any one, and no application to the them to the company individually, and hence court for its confirmation. No account was the cestuis que trustent had the right of election. filed. In 1880, the income of the ladies having The auditor found that the investments were shrunk to less than half, they petitioned for a iniproper ones, that the trustee had not only citation. An answer was filed, and after argu- failed to exercise ordinary diligence, but had ment, the trustee was ordered to file an account, been guilty of supine negligence in making which was referred to Charles W. Beresford, them, and surcharged the Girard Company Esq., as auditor.
with the said item of $25,861.16 and interest, It showed a shrinkage of income from about and further found that the costs of the audit $3,600 to $1,650, and a loss of capital, charged at should be paid by the trustee, as the litigation the cost of certain real estate bought in under had been caused entirely by its conduct in negforeclosure of mortgages, of $25,864.16. The ligently investing the trust funds and refusing claim of the appellees was that the trustee or declining to file its account until compelled should be charged with this loss.
to do so by the court. A volume of testimony was taken before the To this report nineteen exceptions were filed auditor, upon which he found the following before the auditor, which were dismissed by facts:
him as not well founded. The exceptions were That the general rule observed by trustees in afterwards fully argued before the court below Philadelphia, is to loan not more than two- and dismissed, and the report confirmed. thirds of the actual value of the property.
The Girard Life Insurance and Trust ComThat all the real estate in question was of a pany thereupon took this appeal, assigning for speculative and fluctuating character, and after error the dismissal of the exceptions and conits real value had been carefully estimated, not | firmation of the auditor's report. more than one-half of such value should have For appellant, John J. Ridgway, Esq. been invested in mortgages.
Contra, Messrs. F. Carroll Brewster, Jr., and That the mortgages were not, either at the John S. Gerhard. dates of the several investments or since, safe! For those entitled in remainder, WVm. Henry and proper securities for the respective amounts | Rawle, Esq. in them.
That all the mortgages in question were what! PER CURIAM. Filed February 5, 1883. is termed advance, building or bonus mortgages. The negligence imputed to this appellant did
That while mortgages on individual proper- not arise from keeping the trust fund invested hipa of settled and fixed worth almost in variably in the form in which it came into the bands of
and their par value, bonus mortgages, as the trustee. There so strict a rule as to liability U ral rule, sell at a discount:
does not apply. Dat the mortgages in question were pur- This is the case of a loss in investments made,
d at eight, five and four per cent. discount. after the trustee had actually received the hat the following was the value of the real money. A higher degree of caution and prufate w hen the investments were made: dence is therefore required. The auditor found,
Mascher street houses-Valuation, $2,500 each, as a fact, that the trustee had not only failed to mortgages, $2,000 each.
exercise ordinary diligence, but had been guilty North Sixth street-Valuation, $4,500, mort of supine negligence. The court confirmed that gages, $4,000.
finding. The liability of a trustee to be held South Broad street-Valuation, $6,000, mort responsible for losses thereby occasioned is well gages, $5,000.
recognized. The investments made, in what Norris Street houses-Valuation, $5,000 each, are called “bonus mortgages" on property of mortgages, $4,200 each.
uncertain market value, were clearly too specuAnd that the value of all of them has since lative to justify the investments, and support depreciated.
the finding. The appellant was justly held That the examination of the real estate was liable for the loss thereby occasioned. made by a single officer of the company, who Decree affirmed and appeal dismissed at the was not at that time competent for the purpose; costs of the appellant.
OYSTER v. OYSTER.
the former instance we have a rule which may
be followed with mathematical precision, wbich In a devise of real estate "children" is always treated as lawyers and conveyancers understand, and in a word of purchase and not of limitation, unless a con
regard to which they can safely advise their trary intent can be gathered from the will itself.
clients. While in the latter case we are involved Error to the Court of Common Pleas of Cum
in speculation and uncertainty, and the result berland county.
at best is but a guess, and not always a correct Opinion by PAXSON, J. Filed October 2, 1882.
one. Mr. Jarman says, in his work on wills, The single question in this case is, whether vol. 3, p. 708: “Words and limitations may be the word "children" in the third clause of Si- | transposed, supplied or rejected when warranted mon Oyster's will is a word of limitation or of by the immediate context or the general scheme purchase. The learned judge below held that of the will, but not merely on a conjectured hy. under the said clause the testator's son, Simon pothesis of the testator's intention, bowever reaWashington Oyster, took an estate tail, which, sonable, in opposition to the plain and obvious under our statute of 27th April, 1855, was en- sense of the language of the instrument." This larged into a fee simple.
principle is recognized by Mr. Hawkins and The operative words of the clause are as fol- other text writers, and runs through our entire lows: "I give and bequeath to my son, Simon line of cases. Washington Oyster, my farm, situated in East The will before us was probably drawn by the Pennsboro', county of Cumberland, * * * for testator himself. We have examined it in vain bis support and estate, to be and remain be- for anything wbich clearly indicates that he queathed to his children during their natural used the word "children” in the third clause as life."
a word of limitation. If such intent does not Without reviewing the learning upon this clearly appear it does not appear at all for the subject, it is sufficient to say that the authorities purposes of this case, as the legal and well underare uniform that “children" is as certainly a stood meaning of the word "children" cannot word of purchase as “heirs of the body" are be overturned upon mere conjecture. The third words of limitation: Guthrie's Appeal, 1 Wr., clause of the will, standing alone, evinces an 9; Taylor v. Taylor, 13 P. F. Smith, 481. This intent to give his son Simon the farm, for bis is the general rule, and the exceptions which support during his life. It is then given to his from time to time have been recognized do not (Simon's) children during their natural lives. impair the rule itself. There are many instances The gift to the children means something. It in our State where “children" has been held to was intended to take effect in the future; the be a word of limitation, but in all of them such children were to take as purchasers, as a gift construction was clearly in accord with the in- from the testator, and by virtue of his own power tent of the testator, as gathered from the four to dispose of the land. Just wbat estate the corners of the will, as when "children" has children take under the will is a question that been used with heirs of the body” or “issue” does not arise in this case. There is no remainas its synonyms.
der over on failure of children, and, while this The ruling of the court below was based a circumstance entitled to some weight, it is not mainly upon the supposed intent of the testa- controlling: Hoffner v. Wynkoop, 1 Out., 130. tor, the learned judge being of opinion that he If upon such failure the testator intended the employed the word "children," not in its usual farm to revert to bis estate, the law would consense as a word of purchase, but in the more vey it there as effectually as would a special comprehensive sense of a word of limitation, direction in his will. He may have relied upon pointing out the course of descent through the the law for this purpose, or the possibility of entire line of lineal heirs, and that, as there was Simon's dying without children may never have no limitation over, the presumption is that he occurred to him. intended to dispose of his whole estate.
There is nothing in the remainder of the will This course of reasoning is not without force, to conflict with this view. It is true, in a single but we think it insufficient to overturn the legal instance he uses the word "children” as the and technical meaning of the testator's language. equivalent of “heirs,” referring to his own chilThe intent of a testator is always important in dren and his own heirs, in the first and second the construction of a will, where such intent paragraphs of the will. But nowhere, in speakcan be gathered from the face of the will with ing of the children of his sons and daughters, reasonable certainty. But too much care can-does he use the word indiscriminately with heirs not be exercised to avoid setting aside the ex- of the body or issue, and all of them as meaning pressed intention for a supposed intention. In an entire line of lineal descent: Haldeman v. ---- - - -- --- --Haldeman, 4 Wright, 29, relied upon by the of the appellee and three others, on the ground defendant in error, was ruled mainly upon that they had not given such notice as is rethe ground that the words referred to were so quired by the Act of April 9, 1872, for which used.
their respective claims were based. While the testator may have intended the The contention of appellant is that none of word "children" as a word of limitation, such the claims should have been sustained; because fact does not clearly appear, and it would not be 1. The notices of claim were defective and safe for us to assume it.
insufficient. We are of opinion that the word "children," ! 2. The business in and about which the labor in the third clause of Simon Oyster's will, is a was performed was not such as is contemplated word of purchase. It follows that Simon Wash- by the Act. ington Oyster took but a life-estate in the farm 3. The work of cutting timber in which claimwhich is the subject of this contention.
| ants were employed had ceased, and the propThe judgment is reversed, and it is ordered erty, represented by the fund for distribution, that judgment be entered in favor of Napoleon had been regularly and in good faith removed K. Oyster, the defendant below, upon the case from the place where the labor was performed stated.
to a farm ten miles distant, and was subseFor plaintiff in error, S. Hepburn, Jr., Esq. quently levied on there and sold by the sheriff. Contra, John Hays, Esq.
As to the first point, it has been held that the
notice sliould set forth such facts as bring the PARDEE'S APPEAL.
claim within the act, so that the officer and
others interested may know that the labor was Notices of claims for wages under the Act of April 9, performed within the time limited by the act,
1872, must be given within the time limited by the and in business defined therein, the sum due, Act, and must also comply with the other provisions
and that the property, subject to the lien is emthereof, relating to the labor, sums due, and that the property subject to the lien is embraced in the levy:
braced in the levy. It is immaterial in what Allison v. Johnson, 11 Norris, 314, followed.
form these things are set out, but it is essential The business of cutting saw-logs and driving them to that they appear: Allison v. Johnson, 11 Norris, the place of manufacture is not within the contempla
314. tion of the Act of 1872; such a construction would
While the notice in this case is not very clear render the Act of June 12, 1879, unnecessary.
and specific, either in regard to the kind of Error to the Court of Common Pleas of Clin
| business in which the labor was performed, or ton county.
the place where it was done, it might, perhaps, Opinion by STERRETT, J. Filed October 2, 1882. be considered sufficient, if in other respects ap
The fund for distribution in this case was pellee's claim was well founded. raised by the sale of personal property, consist- The second point is well taken. We are ing of horses, cattle, sheep, farming utensils, clearly of opinion that the business of cutting feed, etc., on an execution issued by appellant. saw-logs and driving them to the place of manuColbert, the defendant in the execution, had facture is not such as is contemplated by the Act been employed by appellant and his partner, of 1872. Its declared purpose is to secure money who were manufactures of lumber, to cut saw- due "for labor and services rendered by any logs on their land and run them into Lock miner, mechanic, laborer or clerk from any perHaven and Williamsport boonis. The appellee son or persons or chartered company, employand others were hired by him to assist in cuting clerks, miners, mechanics or laborers, either ting and driving the logs. After finishing his as owners, lessees, contractors or under-owners winter's work, Colbert discharged his emplyees of any works, mines, manufactory or other busiand removed his teams and personal property, ness where clerks, miners or mechanics are emused in the prosecution of the business, from ployed.” The words “works, mines, manufacthe camp in the woods to his farm at Round | tory," thus employed in the act, have a definite Island, about ten miles distant. This was done signification, weil known in general and popuin the ordinary course of business and in the lar acceptation. Ex vi termini, the branches of utmost good faith. While thus on the farm the business intended to be described by them are, property was levied on and sold by the sheriff, in a certain sense, complete and independent, and out of the proceeds appellee and other em- and of a fixed and permanent character, as opployees of Colbert claimed balances due them posed to a temporary employment that is merely for the work in which they had been engaged. incidental to any particular branch of business. Nineteen of the claims were allowed by the It will scarcely be pretended that either of these auditor, but the court excluded all except that words fitly describes the business in which appellant was employed. It is contended, how Opinion by STERRETT, J. Filed October 2, 1882. ever, that the expression “other business," etc., ! In January, 1879, the plaintiffs in error, partis sufficiently comprehensive to embrace cutting ners in the practice of niedicine and surgery, and driving logs. Perbaps it would, if we were undertook to treat the defendant in error for a at liberty to construe it without reference to the compound comminuted fracture of the lower context; but the preceding words, designating third of the tibia and fibula; and after attendparticular branches of business with which the ing him professionally for about ten weeks, idea of permanency and completeness, in a they were discharged. The injury, whieh was certain sense, is always associated, must control a very serious one of the kind, caused by his the meaning of the niore general expression being run over by a loaded wagon, was followed used in immediate connection therewith. The by necrosis of the bone. After protracted treatother business is ejusdem generis with that ment, the limb was saved, but in such a shortmore particularly described by the preceding ened and deformed condition as to partially words of the context; business of the same deprive him of its use. It was contended in general character, not embracing every species the court below that the plaintiffs in error were of employment in which the services of others negligent and unskillful in their treatment of may be rendered.
the injured limb, and by reason thereof it was This construction of the act under considera- | not as fully restored as it should have been, and tion also harmonizes with subsequent legislation the personal suffering of the defendant in error on the subject of labor claims. The Act of June was unnecessarily increased. The questions of 12, 1879, P. L., 176, entitled “An Act to enable fact thus presented were exclusively for the laborers to secure and collect their pay for work jury, and no complaint is made of the manner done in and about the stocking of saw-logs," in which they were submitted ; but it is claimed gives them a preferred lien on the logs “for there was error both in the admission and rework done in and about the cutting, peeling, jection of testimony which had an important skidding, bauling and driving of saw-logs" for bearing on the questions before the jury. The a period not exceeding six months prior to the specifications of error are restricted to these death of the employer, or to his assignment for points. It is a sufficient answer to the first asthe benefit of creditors, or to sale of the logs on signment to say, that the question propounded execution process against said eni ployer. If | to Dr. Ainey was not proper cross-examination. the Act of 1872 bears the construction contended He was not called or examined in chief as an for by appellee, the Act of 1879 was clearly a expert, nor was he asked to give a professional work of supererogation.
opinion on the facts to which he testified. If It is unnecessary to discuss the third point. the defendant below had desired his opinion as Under the circumstances of this case it is also an expert, they had an undoubted right to call well taken.
and examine him as such; but it would have Decree reversed at cost of the appellee, R. been irregular for them to interject their de Patrequinn; and it is now adjudged and de- fense in the manner proposed. For a similar creed the sum of eighty-three dollars, errone- reason there was no error in the ruling comously appropriated to the payment of his claim, plained of in the second specification. be paid to the appellant.
The third assignment was not pressed, nor, For appellant, T. C. Hipple, Esq.
indeed, could it have been with any prospect
of success. Before the witness, Dr. Ford, was OLMSTED & BAILEY v. GERE.
asked to give his professional opinion as to
whether the fractured limb had been skillfully Parties desiring the opinion of their opponent's witness or unskillfully treated, he had testified that he as an expert must call him as such, and not interject
graduated in 1860 from the College of Physicians their defense by means of cross-examination.
and Surgeons in New York, and subsequently In a suit to recover damages for unskillful treatment, causing a deformity of limb, it is error to reject the
served as surgeon in the army for nearly three testimony of a witness which would tend to satisfy 1 years; that he had examined and treated the the jury that the limb was in as good a condition as
injured limb after the plaintiffs in error were could ordinarily be expected in such a case when
discharged from the case, and explained the properly treated by skillful surgeons; and such error would not be fully cured by allowing subsequent testi
condition in which he found it, etc. In view mony from the same witness as to the effect of the of the evidence proving his competency to tesgeneral results of the same injuries when treated with tify as an expert, the court was clearly right in skill.
overruling the objection. Error to the Court of Common Pleas of Sus- The fourth and fifth assignments are not susquehanna county.
tained. The testimony complained of in the former was both competent and relevant. The say the error was fully cured by subsequently declarations of Dr. Blakeslee, referred to in the permitting the same witness to answer the latter, were clearly inadmissible. He could question, “What are the general results of comhave been called to testify that the treatment of pound comminuted fracture of the leg when the injured limb was “right and proper;" but treated with skill?". His answer to that genit was not competent to prove his declaration to eral question indicated that his response to the that effect, whether made in the presence of the other more specific questions would probably plaintiff below or not.
have been favorable to the defendants on the The sixth to ninth assignments inclusive, re- point most vital to their defense. The seventh, lating to the refusal of the court to permit Dr. | tenth and eleventh assignments are not susGeorge Burr to answer the questions therein | tained. specified, may be considered together. Dr. Burr Judgment reversed and venire facias de novo had examined the injured limb, and had heard awarded. the witnesses testify as to the manner in which! For plaintiffs in error. E. L. Blakeslee, Esq. it had been treated by Dr. Bailey, one of the
Contra, Messrs. McCollum & Watson. defendants below. He was then asked to give his opinion as an expert, based on the testimony he had heard and his own knowledve of the COOPER v. THE ORIENTAL SAVINGS AND cases as to whether it had been skillfully or un
LOAN ASSOCIATION. skillfully treated. He was also asked to state "whether or not the limb is in as good condi Under the first section of the Act of 26th of April, 1869, tion, and the results are as good as the average
P. L., 1223, building, savings and loan associations
located in Philadelphia, after the expiration of their run of cases of compound comminuted fracture
charter, may maintain actions to recover mortgages of the leg that are treated in a skillful manner
and other debts in any part of the Commonwealth; by skillful physicians." The next question the above section is not in conflict with the last clause was, “in cases of compound comminuted fract
of Article I, Section 25, of the Constitution of 1838. ure of the limb, followed by necrosis of the bone,
Power of the Legislature to provide by Act of Assembly
a legal remedy to enforce the payment of debts, etc., state whether or not there is almost always great
due to corporations whose charters have expired by deformity?" It is contended the court erred | limitation. in excluding the testimony sought to be elicited by these questions and that covered by the
Error to the Court of Common Pleas of Bucks
county. seventh specifications.
The injured limb, evidently deformed, was Opinion by MERCUR, J. Filed October 2, 1882. shown to the jury, and the course of treatment This contention is whether the defendant in to which it had been subjected, was fully de- error has such a corporate existence as to enable scribed by the witnesses. The inference sought it to maintain this action of scire facias. Its to be drawn therefrom, was that careless and charter was granted by the Court of Common unskillful treatment was the cause of the de- Pleas of the county of Philadelphia, on the 6th formity. Hence, it was vitally important for of June, 1853, for a period of ten years, under the defendants to satisfy the jury that such was the 4th section of the Act of 22d of April, 1850, not the case; that, on the contrary, the condition P. L., 550, and the 5th section of the Act of 12th of the limb, as exhibited to them, was the result of April, 1851, P. L., 441. The mortgage was of the severe injury the plaintiff received, fol- executed by the plaintiff in error on the 15th lowed, as such injuries frequently are, by necro- of July, 1857, conditioned for the payment of sis of the bone; that the limb was in as good $1,200 with interest, within one year, and also condition as could ordinarily be expected in for the payment of six dollars in each month such a case, when properly treated by a skillful as and for the monthly contribution on six surgeon. In determining whether a disease or shares of stock of the association owned by an injury has been treated with proper care and him. The scire facias issued on the 4th of skill, courts and juries must depend mainly February, 1879. on the testimony of experts; and considerable. It is not pretended by the plaintiff in error latitude must necessarily be given in the ex- that he paid the mortgage; but he contends amination of such witnesses and in propound that the expiration of the charter of the associaing hypothetical questions for their opinions. tion in June, 1863, worked such a dissolution of The testimony proposed was competent, and all its corporate powers as to preclude it from the witnesses should have been permitted to maintaining any action on the mortgage. This answer the questions embraced in the sixth, may be conceded to be the general law applieighth and ninth specifications. We cannot cable to defunct corporations. The question,