nor extreme distress or debility of body, will affect the capacity to make a will if sufficient intelligence remains. The failure of memory is not sufficient to create the incapacity, unless it be total or extend to his immediate family or property. The want of recollection of names is one of the earliest symptoms of the decay of the memory; but this failure may exist to a very great degree, and yet the solid power of the understanding remain: Van Alst v. Hunter, 5 Johns. Ch., 148.

A careful examination of the facts related by the witnesses who had acquaintance with Dougal, and opportunity to observe his condition about the time of the execution of the will, reveals no sufficient evidence of testamentary incapacity to warrant its finding against the convincing evidence that he had disposing mind and memory. Excepting the attesting witnesses to the will, one who is not an expert, can only testify his opinion that the testator's mind was not unsound, after having stated facts within his own knowledge tending to show that condition; and whether he has testified to such facts as entitle his opinion to go to the jury is always a question for the court: First National Bank of Easton v. Wirebach's Executor, 39 Legal Intell., 336. In the admission of testimony the court allowed the defendants great latitude, and having heard it all, upon determining its sufficiency, properly gave no weight to opinions which were incompetent. Dougal had lived over a hundred years before he made his will, and his physical and mental weakness and defective memory were in striking contrast with their strength in the meridian of his life. He was blind; not deaf, but hearing impaired; his mind acted slowly, he was forgetful of recent events, especially of names, and repeated questions in conversation; and sometimes, when aroused from sleep or slumber, would seem bewildered. It is not singular that some of those who had known him when he was remarkable for vigor and intelligence, are of opinion that his reason was so far gone that he was incapable of making a will, although they never heard him utter an irrational expression. To remark the testimony of each witness called by the defendants would be vain; but the general character may be learned from one of the most intelligent, Mr. Dunlap. He knew Dougal in 1815, studied surveying with him in 1835, was an intimate friend, was very frequently with him in the line of his business, and when Dougal ceased surveying he turned his business over to the witness. He testifies that Dougal was a strong-minded man, wrote rapidly and well, and was very tenacious of his opinions; a tender

and feeling man, always glad to meet his old acquaintances of childhood; that in the last years of his life his mind was not so vigorous; that in 1880 his memory appeared to be right on transactions in the prime of his life; on these he conversed as well as ever; did not talk about recent transactions, but he asked about witness' wife; asked the same question over several times, as if he had forgotten he had asked it before; saw nothing like insanity about him, and never heard an irrational or insane expression by him, and observed no hallucination or delusion; and the witness thinks that, under solicitation and well-wishers, Dougal would have readily changed his mind, and doubts if he had capacity to make a will. Surely this testimony does not show want of testamentary capacity. All true; and Dougal could understand the business in which he was engaged when he made his will, know the property he possessed, and understand to whom he desired to give it. Other witnesses who knew less of Dougal had positive opinions that he lacked testamentary capacity; but the facts they stated, if not precisely the same as stated by Dunlap, came as far short of justifying such opinion.

The testimony of the experts, physicians, was upon hypothetical statements; and had the evidence warranted the finding of facts as stated in the interrogations, the question of the testator's capacity to make a will, ought to have been submitted to the jury. But the learned judge of the Common Pleas was right in hoding that, in no just view of the evidence, could such a case be found as the experts considered and passed upon.

The testator left the home of his kindred at an early age, and thereafter his intimate friends and associates were strangers to his blood. Until he became blind he lived alone. During the last few years of his life he was in the house of Mrs. Protzman, and the care she and her family gave him was satisfactory to himself. For many years Mr. Mitchell had been his attorney and friend, and in his blindness and feebleness he often requested and received visits from Mitchell, more of a friendly than professional character. His estate was not large, and it does not appear that he had made any disposition of it until a short time before his death. He conveyed one-half the farm to Mrs. Protzman in August, 1878, and the other half in April, 1879. He acknowledged two deeds on April 28, 1879; one to William Dougal and one to James Dougal, for the lots in Butler, and about the same time made a will. On December 31, 1880, he destroyed said will, and also the deed to William and James Dougal, and made a will, devising

the two lots in Butler to William M. Dougal, James Dougal, Catharine Protzman and Lewis Z. Mitchell, share and share alike. He appears to have been grateful for the care and kindness of those about him. Whatever may be thought of the wisdom of the devises, or of the just claims of his distant collateral relatives upon his bounty the circumstances of this will add little force to the allegation that he had not disposing memory at the date of its execution.

devise or bequeath the whole or any part of his estate to Mitchell or Mrs. Protzman. The only thing pointing to such request is the testimony of Kate Bauldauf, that Mrs. Protzman proposed to the witness to ask Dougal to will her something; but the witness did not. That was about ten years before the making of the will. Doubtless there was the influence of affection and attachment resulting from the care and attention of Mrs. Protzman, but that by itself is a ground

The remaining assignments relate to the question whether the will was procured by fraud, devices, imposition and under influence. After calling attention to the fact that Mitchell had been the attorney and confidential advisor of Dougal, that he wrote the will, and was himself a considerable beneficiary, the court charged that when the alleged testator is weak in mind, arising from age or other causes, though such weakness is not sufficient to create testamentary incapacity, and the person whose advice has been sought and taken, receives a large benefit under the instrument propounded as a will, it must be shown affirmatively that the alleged testator had full understanding of the nature of the disposition contained in it. In the case of an old, infirm and mentally weak man, disposing of his estate in favor of his confidential advisor, the general rule that testamentary capacity and knowledge of the disposition made are presumed, does not apply. There should be very clear evidence of mental capacity and proof, independent of the execution of the will, that Mr. Dougal's mind was free and unbiassed by the counsel, advice or influence of Mr. Mitchell in so executing it. The beneficiary himself being a competent witness, he cannot complain that the rule is hard or unjust which requires him to make it clearly appear that the gift to him was the free, intelligent act of the testator. Moreover, the defendant's seventh point was affirmed, as modified or explained in the general charge, and nothing has been pointed out in the charge which diminishes the force of the proposition. That these were the fitting instructions respecting the constructive fraud from the relationship between Dougal and Mitchell, is not denied; but the defendants insist that the question of actual fraud should have been submitted, or that the jury should have been instructed to find for the defendants.

There was no evidence of any persuasion, entreaty or request by any one, for Dougal to

If Mitchell and Mrs. Protzman testified truly, Dougal himself directed the disposition of his property. If they and the subscribing witnesses are believed, the will was read to Dougal several times, and it is too simple to require explanation. It was executed in December, and in the next May Dougal desired that Jackman should also witness it, and it was again read in the hearing of Jackman. Then he declined to have it witnessed by Jackman, although requested to do so, giving no reason at the time for his refusal; but in June he again sent for Jackman and had him subscribe as a witness. The character of Mitchell is unassailed. None of the subscribing witnesses or devisees are impeached, save by testimony of some contradictory statement. It was for the jury to determine whether Mitchell had clearly and satisfactorily proved the absence of fraud.

The presumption of fact is, undue influence by Mitchell over the testator whereby he obtained the devise to himself, and this is deemed a constructive fraud. This is what was necessary for Mitchell to rebut by proper evidence. If he satisfied the jury of the absence of such influence, there was no fraud. Hence it was right for the court to instruct the jury upon the law applicable to the evidence, and not submit a question of which there was no evidence. The answers to the defendants' fourth, eighth, ninth, tenth, eleventh and twelfth points did not modify the instructions relative to the undue influence and fraud presumed from the relationship, but distinguished that influence and constructive fraud from actual fraud, or such undue influence as importunity that could not be resisted.

We think the defendants' fifth point was rightly refused. The evidence fails to show that Mitchell ever made any representation to Dougal of the value of his services, or requested compensation by a provision in his will. But Mitchell's testimony is that he never directly or indirectly expressed an opinion to Dougal in regard to his making a will; that about a week before the making of this will Dougal said he would make him one of his heirs; that was the

only such intimation before the day of writing the will; that at the time the will was being written Dougal wanted the devise to be in satisfaction of his services. Ground was not laid for the legal conclusion that the devise is void if incommensurate with the services rendered.

Judgment affirmed.

For plaintiffs in error, Messrs. Brandon & Campbell and Jenks & Clark.

Contra, Messrs. Thompson, McCandless, Fleeger, McQuiston and Walker.

District Court, United States,

Western District of Pennsylvania.

LEVI BIRD DUFF, Assignee in Bankruptcy of CARRIER & BAUM, v. EDWIN BINDLEY.

(1.) It being by statute (Act of May 4, 1869), unlawful for an owner of an undivided interest in timber land to cut down or remove from the land any timber trees, without having first obtained the consent of his cotenants and as against his non-consenting co-tenants

his sale of lumber manufactured out of timber so cut or removed passing no title to his vendee: Held, in an action of trover against such vendee by a non-consenting part owner, that the plaintiff was entitled to recover the value of his interest in the lumber, as of the date of

the defendant's conversion, with no allowance for the expense and labor of the trespassing vendor. (2.) Timber unlawfully cut down by an owner of an undivided interest in the land, without the consent of his

co-tenant and still lying upon the land at the time of the marshal's sale of the undivided interest in the land of the non-consenting owner who had not elected to treat the felled timber as personalty, remains part of

the freehold, and the interest of the defendant in the execution therein passes to the marshal's vendee as realty.

CHARGE OF THE COURT, ACHESON, D. J., DELIVERED FEBRUARY 20, 1883.

GENTLEMEN OF THE JURY:

This is an action of trover brought by Levi Bird Duff, assignee in bankruptcy of John Carrier and Andrew F. Baum, against Edwin Bindley, to recover damages for the wrongful conversion of certain lumber-boards, etc., made from timber cut from a tract of land numbered 2009, situate in Clearfield county, Pennsylvania.

This tract, by a deed dated March 13, 1868, was conveyed by John Dubois to John Carrier, Andrew F. Baum and Robert Osborne, who took and held the land as tenants in common, owning equal interests, one-third each.

About the year 1876 the interest of Osborne in the land became vested in James W. Riley and J. T. Stockdale. Carrier and Baum were duly adjudged bankrupts in the year 1874, and

their interest passed to their assignee in bankruptcy.

Prior to the commencement of the proceedings in bankruptcy, however, Smith & McGregor obtained a judgment in the Circuit Court of the United States for the Western District of Pennsylvania against John Carrier, and the assignee in bankruptcy took Carrier's title subject to the lien of that judgment. The judgment was duly revived, and upon an execution issued thereon the United States Marshal on the 19th of June, 1879, sold the interest of Carrier in the land to the said Riley, to whom the marshal executed a deed therefor dated August 25 and acknowledged August 26, 1879.

Under authority from Riley and Stockdale, but without the consent of the assignee in bankruptcy, and without his knowledge so far as appears, George F. McLean and Andrew Baum cut from the said tract of land timber yielding about 2,000,000 feet of lumber. McLean and Baum commenced these operations in the fall of 1878 and continued them during the year 1879, or the greater part thereof.

McLean and Baum sawed up the timber and sold and delivered part of the lumber manufactured out of it to Edwin Bindley, the defendant; and this is the lumber which is the subject-matter of this suit. When sold to the defendant the lumber was at the railroad siding at Dubois, in Clearfield county, and by the defendant's directions it was shipped to him from that point by rail, consigned to him at Pittsburgh. Under the evidence the railroad siding at Dubois must be considered as the place of delivery to the defendant. Upon the shipment to him at that place the conversion by him of the lumber was complete.

In Pennsylvania, by virtue of the provisions of the Act of Assembly of May 4, 1869, Purdon, 1467-8, it is "unlawful for any owner or owners of any undivided interest in timber land within this Commonwealth, to cut or remove, or to cause to be cut or removed, from the said land, any timber trees, without first obtaining the written consent of all co-tenants in said premises." [Section 1.]

The second section of the act provides that, "No sale of any timber cut or removed from such undivideh lands, before or without such consent, shall pass any title thereto; and the parties injured shall have every remedy in law and equity for the recovery of the said timber trees, and of all square timber, boards, ties, shingles and other articles whatsoever manufactured therefrom, and also for the recovery of damages for the cutting or removing of the same, which they now have against an entire stranger

to the title." And section third provides that, "Upon the violation of the provisions of the first section of this act, it shall be lawful for any of the parties in interest to sue out a writ of estrepement, to prevent any further cutting thereon, or the removal of any timber then already cut or both; which said writ shall be of force until the interests of the parties shall be set out in severalty, or the writ dissolved by the court, or the action of partition in reference to said land finally ended."

In the present case McLean and Baum, in cutting the timber from tract 2009, acted altogether without the consent of the assignee in bankruptcy; and therefore as to him they were naked trespassers-willful wrongdoers. Nor did they acquire as against the plaintiff any better title to the lumber, the boards, etc., than they had in the timber itself. The assignee in bankruptcy had the same undivided interest in the lumber as he had in the timber out of which it was sawed.

It follows, therefore, that the sale by McLean and Baum to the defendant did not convey any title to the plaintiff's share of the lumber, and the plaintiff is entitled to a verdict according to the extent of his interest in the lumber so sold and consigned to the defendant.

From the defendant's testimony it appears that the first delivery to him was of 22,800 feet of clear and common pine boards on June 21, 1879. The next deliveries were on July 24, August 28 and September 18, 1879. As to the quantities delivered at these dates there is no controversy. The counsel will furnish you with the figures in their respective statements, which they will submit to you.

The other deliveries to the defendant were made in cars (the numbers of which we have) at Dubois, on and after November 2, 1879. In respect to the quantity of these deliveries, there is a great discrepancy, amounting to from 75,000 to 85,000 feet, between the parties. The evidence here is conflicting. The counsel have commented upon it and given you their respective views. It will be for you to determine from all the evidence, the whole quantity, the number of feet of lumber, delivered to the defendant, remembering that the delivery took place at Dubois upon its shipment by the cars.

S. Marshal on June 19, 1879. Beyond all question that sale carried to Riley, the purchaser, Carrier's interest in all timber then standing on the tract. But I am of opinion, and charge you, that it went beyond that, and also embraced all felled timber which then remained on the land. I am of the opinion, and instruct you, that such timber-timber cut down by McLean and Baum prior to the date of the marshal's sale, but still lying on said tract No. 2009, at the time of said sale-must be regarded, as between the parties to this controversy and those under whom they claim, as part of the realty: Rogers v. Gilinger, 30 Pa. St., 185; Seidy v. Procter, 97 Id., 486. Hence, in right of Carrier the plaintiff bad only an interest in so much of the lumber in question

the lumber delivered to the defendant-as was sawed or made from timber removed from tract No. 2009 prior to June 19, 1879,-the date of the marshal's sale.

The jury may fairly assume that the 22,800 feet of boards delivered to the defendant on June 21, 1879, was made from timber which had been removed from the tract prior to the marshal's sale. But how much, if any, of the lumber delivered after June 21, was made from timber removed from the tract prior to June 19, 1879, has not been shown as clearly as is desirable. I, however, leave you to determine, under all the evidence, how the fact is.

In assessing the plaintiff's damages you will ascertain from the evidence what was the fair value of, the lumber at the railroad siding at Dubois at and immediately before the time it was put on the cars; and you will make no deduction or allowance for any expenses McLean and Baum were at in cutting the timber, or sawing it, or in removing it to the railroad siding. I have already instructed you that the plaintiff's interest in the sawed lumber was the same as his interest in the timber itself out of which it was made, and in ascertaining its value no abatement is to be made on account of what McLean and Baum's labor and expenditures may have added to its value. They were mere trespassers as against the plaintiff and entitled to no such allowance, and in this respect the defendant is in no better position. Let me briefly recapitulate:

The jury will ascertain: First-The whole quantity of lumber delivered to the defendant. Second-The defendant's proportion or share thereof, in accordance with the instructions already given. Third-The fair value of the lumber at the railroad siding at Dubois at the

these matters, the money value of the plaintiff's share will be of easy calculation. To that value